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Getting Cute with the GPL
Thursday, November 16 2006 @ 02:04 PM EST

Eben Moglen has now stated that GPLv3 will be redrafted to include clear language that will make the Novell-Microsoft agreement an obvious GPL violation, and more:
"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."

I expect that got Microsoft's attention. When his statement was read to Novell, it put out a statement that illustrates, to me, what the real problem is -- getting cute with the GPL:

We dealt with the current GPL license (GPL version 2) when we worked on our partnership with Microsoft. We reaffirm that our patent cooperation agreement is compliant with GPLv2. The fact that Mr. Moglen offered no opinion on this question is instructive. As to GPLv3, which is still a work in progress, Novell has supported the Free Software Foundation's pursuit of transparent discussions that surface and address the needs of all relevant constituencies -- customers, developers and vendors. For GPLv3 to be viable and relevant, it will need to address the needs of these constituencies, and Novell maintains that its partnership with Microsoft benefits those constituencies. The GPLv3 efforts should not be turned to a task designed to undo a transaction that will actually promote the enterprise-wide adoption of Linux and one that will best address the computing needs of customers.

Well, it is going to. You can take that to the bank, and Novell has ensured not only that it will happen but that GPLv3 will have broader community support than it did before.

You can see that Novell's asserting in its statement that the agreement *was* compliant with GPLv2. So did Tivo, and in Tivo's case, it was literally in compliance while being out of compliance with the purpose or spirit of the license. Now we may have a second case of getting cute with GPLv2, technically abiding by the letter of its terms while flouting its clear purpose and intent. I say "may" because Moglen has yet to finish his audit of the agreement, and now that it's being redone, I expect that will mean we won't hear his assessment for a while longer. It may in fact be directly violative of the GPL. He is reviewing the actual agreement.

But let's assume, for the sake of this discussion only, that Novell managed to squeak by the terms of GPLv2 by a millimeter. Would that not illustrate beautifully exactly why we need GPLv3? We need it because folks are starting to get cute with v2.

Let's review the four freedoms the GPL is designed to provide, and I'll let Richard Stallman do that, since he thought it up in the first place, as expressed in a speech at NYU in 2001:

A program is free software for you, a particular user, if you have the following freedoms:
First, Freedom Zero is the freedom to run the program for any purpose, any way you like.

Freedom One is the freedom to help yourself by changing the program to suit your needs.

Freedom Two is the freedom to help your neighbor by distributing copies of the program.

And Freedom Three is the freedom to help build your community by publishing an improved version so others can get the benefit of your work.

If you have all of these freedoms, the program is free software, for you -- and that's crucial.

Tivo made some of these freedoms a sham, as explained by Eben Moglen, who is guiding the GPLv3 redrafting process:

All future versions of the GPL will fully protect the freedoms that the Free Software Foundation defined decades ago, and which we believe all software users everywhere should be guaranteed. Freedom zero, the freedom to use software, is infringed if you are required to pay fees or make promises in order to use software, anywhere, anytime. FSF will never publish a license that violates freedom zero. Similarly, freedom two, the freedom to modify a program, and freedom three, the freedom to share, are violated if private modification is prohibited or sharing is required rather than permitted. You can always modify free software for your own use, and decide whether to share it with other people. If you share with others, the GPL says now and always will say that you have to give them the same freedoms you were given by others who contributed to the code you are using, modifying and redistributing.

Just reading that, isn't it obvious what is wrong with the Novell agreement? I think you can see from his statement that the Novell-Microsoft patent peace is not in harmony with freedom zero, for starters. There are other things wrong with it too, but since Microsoft is asking for input on what needs to change, and I'm glad that they are asking, I thought it would help to explain the basics. I think some in Novell need a refresher course as well.

And to clarify for Microsoft and others, here's part of a speech that Richard Stalllman gave recently in which he explains the point of the patent clause in GPLv3. Can anyone now claim, after the appalling Novell-Microsoft agreement, that no such clause is needed?

But there are some places where we actually have changed the policies in small ways. One of these concerns software patents. GPL version two is based on an implicit grant of a patent licence. The idea is that if somebody says "here is a thing and you can use it", implicitly he's promising he's not going to sue you for patent infringement if you go ahead and do what he said; however, since in the past eight years or so some other Free Software licences have included explicit statements of patent licenses, patent licence grants by people distributing the software, and so we decided to do the same thing, and we've included an explicit statement that the distributors of the software all promise not to sue anybody who is using any version of that software for patent infringement based on the versions that they distributed. Basically, whatever their versions do, they're promising not to sue you for.

However, there's a subtlety that came up in this. What if somebody doesn't have a patent but he has got a licence for that patent, and he distributes the code to you. Well, does that licence he got include your exercise of the four freedoms? Including your freedom to redistribute copies yourself, with changes? Maybe not, but if it doesn't, it creates a dangerous and unfair situation. Unfair to you because he is distributing the software, or distributing his version of the software, and he is not going to get sued for patent infringement because he got a licence. He distributes it to you under the GPL and the GPL says you are free to redistribute it too, but if you do that you might get sued because his patent license might not cover you.

Well, this is unfair, this is something that's not supposed to happen. He received this program under the GPL and the GPL says when he distributes a version of it, he must really give you the freedom to do the same. If he can count on safely doing it, and he knows you will get sued if you do it, by a third party, he's cheating. So, GPL version three, along with the explicit patent licence grant, says that if he is knowingly relying on a patent licence for distributing his version, he must take some effective step to protect you as well if you distribute.

So what is implicit in GPLv2 is being made explicit in v3, because some, like Novell and Microsoft, apparently need a very bright line or they will fudge, as they did. I guess it's human nature to fudge. If everyone thought about others as being as valuable as themselves, who'd need laws or legally enforceable licenses? The purpose of the GPL if one must boil it down into a phrase is to ensure fairness, to protect against corporate hijackings and other cowboy tricks, to compel decency.

Fairness is the law's purpose as well. And as you know from earlier articles, the courts enforce laws, but they have another purpose: they also provide equity, another word for fairness. And while Novell in its statement, hopefully now overruled by the rewrite we are hearing about, makes the implied assertion that it is in literal compliance with GPLv2, it is obviously not in compliance with the purpose or spirit of it, as the community's overwhelming reaction ought to by now have informed it.

Now, if you're a certain type of business sharpie, you may thumb your nose and say, so sue me. And indeed that is a tempting possibility. But before you insist, ask yourself this: if two parties go to court in a dispute, and one party says, we knew about the license, and we knew what the terms were, and we deliberately couched our agreement to bypass the clear purpose and the intent of the license when we thought we'd figured out a loophole, do you really believe for a minute that any court of equity will endorse such behavior?

There is substantial case law that says that courts will not. Why not? Because it's not fair. Duh. And by now, there are ample statements given to the media by both Novell and Microsoft that they knew about the GPL, understood its terms and requirements, and wrote specifically to avoid the license's intended effects with respect to patents. Of course, they would likely argue that they were trying to do what they wanted to do while still complying. But the world has now judged that claim to be ridiculous. It doesn't pass the smell test. There isn't much about the deal that does, actually, which is why it's a good thing they are reevaluating.

What is clear is that some enterprise players wish to make money from GNU/Linux. That's fine with everyone. But you can't make honorable money from cheating. The GPL provides the rules of the road. It's the overwhelming choice of FOSS programmers. You have to live with that if you want the code. It doesn't matter what you think of the GPL, whether you hate it, think it's too this or too that, or how you'd prefer it to read. It is what it is. And you have to abide by its terms. If you want different terms, do participate in the GPLv3 process, by all means.

Let me put it into terms I know Microsoft will understand. Microsoft releases its software under a license, a EULA. It expects everyone to abide by the terms of the EULA, and it enforces the terms both technically and by means of the courts. Folks come up with all kinds of reasons they claim are their right to not follow the EULA's terms, but Microsoft pursues even individual eBay sellers to make clear what their EULA means to them. That's how holy its EULA terms are to it. The GPL is the equivalent. It's no different. If you don't abide by the terms, you can't make excuses. That's not extremism or zealotry. It's the law. The GPL is built upon copyright law and it is enforced by copyright law. That is the law of the land here, and you don't have to be a zealot to think that abiding by the law of the land is appropriate.

Some few may say, "Hey, I wrote some of the code, and I don't care. Novell can do that. Or, Tivo has my permission." If those who wrote the code wish to dual license their now GPL'd software, or make use of the exceptions language in GPLv3, they are free to do so. If they wish to write proprietary software so they can do proprietary things with it, it's fine with me. Even Stallman has said there are circumstances where writing proprietary software would be justified. What they are not free to do is get cute with the GPL and try to make it do proprietary things, or to distort the terms on code that was written by other people, or pretend they didn't ever really mean what the license clearly states, or that somehow compromise is now "necessary" so as to satisfy alleged customers, who are apparently as blind and amoral as the alleged shareholders we keep hearing about who we are told have such voracious appetites for profit that corporations are somehow compelled to jettison all other values and interests.

And by the way, Linux wasn't written by one man or even by 30 people. If you think you can write what you need with just 30 people, by all means do so. It's the proprietary method, and if that's what you really want, do that, by all means. But don't pretend for a moment that this is how Linux got here. Shutter the bazaar or scurry back into the cathedral if you wish, but you can't bring the GPL in there with you. Capiche? I get why businesses prefer their own privileges to be higher on the totem pole than everyone else's and I understand that they are in business to make money, but the GPL isn't expendible if you want the code. It's a package deal. Companies are used to forcing their developers to do what they want, whether they like it nor not, and if the poor developer is an employee, they may even feel they have to go along with strategies that they actually hate, although a fair number of SUSE guys left Novell even before this agreement. But you can't force FOSS community developers to do that, because they don't work for nothing. They work for your compliance with the GPL or whatever other license they choose to put on their freely available code. I see clearly that there was a coordinated push to isolate GPLv3, to try to persuade the community that only extremists will use it or would want its protections. But it has backfired. The community's reaction to the Novell action is overwhelmingly obvious.

You have to write your own code if you wish to do things the GPL won't let you do or get the original author to give you special permission. Why? Because the GPL is the license that the authors put on their "intellectual property" and if you accept, as corporate entities surely do, that concept of owning property of the mind, on what basis do you justify getting cute with the GPL's terms or looking for clever workarounds and avoidance mechanisms? It's not just a matter of honor. It's the law. Stallman has argued that it's the American Way. Of course, he was reacting to Microsoft's then-smear that the GPL was unAmerican.

The bottom line is: The author gets to decide under what terms he chooses to allow anyone else to copy, modify and distribute his code. And what matters is what the license says, not what some individual here or there might have had in his mind. Short-sighted business interests may think they can just box up what FOSS has now produced, so they no longer need the open source method, the community, or the license that made Linux and FOSS successful in the first place. They will naturally try to repeat what they did with Unix. So they may be willing to kill the goose that lays the golden egg, because all they can focus on is the golden egg in the hand that they'd like to run off with. Happily, we have the GPL to hem in that kind of myopic player.

A license can be adjusted to the needs of the day. Today's need is to block corporate interests from whittling away at the GPL so they can make a buck unfairly. And that is precisely what is going to happen. Moglen:

"I'm instructed by my client," Moglen said, referring to the FSF, "that version 3 will contain measures that will prevent any such deal from occurring in the future. We will change the law such that . . . we will reverse the legal consequences of this deal."

Folks didn't write all that code you love and need so you could rope it off, tie it up in proprietary requirements and make a killing for yourselves at the cost of abiding by the GPL. That is how you pay for the GPL'd code, by compliance.

Sun's Jonathan Schwartz wrote that an executive at either Microsoft or Novell said "free has to have a price." I expect we can guess which company's executive is more likely to have said that. On its face, that's a ridiculous statement, but on a deeper level, one could answer that the price for free is that you must abide by the GPL. That's how you pay for all that freely available code. "Yeah but I *want* to, I *need* to, Linux will be more popular, my customers *demand* that I sidestep the clear meaning of the GPL" doesn't count. There is no honorable workaround. And with GPLv3, by March there will be no legal workaround either.


Getting Cute with the GPL | 877 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections go here
Authored by: Waterman on Thursday, November 16 2006 @ 02:11 PM EST
So PJ can find them.

[ Reply to This | # ]

OT goes here.
Authored by: Waterman on Thursday, November 16 2006 @ 02:13 PM EST
Make links clickable if you can.

[ Reply to This | # ]

Getting Cute with the GPL
Authored by: Waterman on Thursday, November 16 2006 @ 02:22 PM EST
What would be the effect if Novell decided to stick with the current GPLv2 code
and work on it only? If he finds that Novell is meeting current GPL requirements
and GPLv3 doesn't suit them, I see another fork coming.

[ Reply to This | # ]

Getting Cute with the GPL
Authored by: Jude on Thursday, November 16 2006 @ 02:25 PM EST
I don't care if Novell and Microsoft are technically complying with GPL V2. The
point is that they're obviously getting cute and trying to evade its intent.

The speaks volumes about Novell's ethics.
Microsoft's ethics require no comment.

[ Reply to This | # ]

Getting Cute with the GPL
Authored by: Anonymous on Thursday, November 16 2006 @ 02:25 PM EST
all this is why the GPL will be dead in the water.

[ Reply to This | # ]

Getting Cute with the GPL
Authored by: kdunwoody on Thursday, November 16 2006 @ 02:35 PM EST
This highlights a problem with GPLv2, but I'm still not sold on v3, in
particular the DRM clause. There are cases when "tivoization" is a
good thing.

Take, for example a Linux voting machine. If I made a Linux-based voting
machine, I'd be more than happy to give away the source code for my entire
voting machine under the GPL, but there's no way I'd want any updates to the
machine, except those approved by my company.

[ Reply to This | # ]

Thank you Novell and MSFT for doing QA on the GPL
Authored by: Anonymous on Thursday, November 16 2006 @ 02:41 PM EST
Just like bugs are found in Linux itself, it seems Microsoft found a security
hole in the wording of the GPL itself.

Rather than be mad at them, we should thank them for showing it to us so it can
be fixed.

IMHO they made the single most convincing argument which turned me from
prefering the GPLv2 to the GPLv3 -- the GPLv2 has an insurmountable bug which
they just exposed.

F/OSS license forking at it's best.

[ Reply to This | # ]

Well, Microsoft did *invent* getting cute with licenses...
Authored by: Anonymous on Thursday, November 16 2006 @ 02:43 PM EST
I just wonder how anyone can be expected to word a license so that no one can
get cute with it. There are no depths of chicanery to which a person cannot

The real issue is that people never want to be *equal* partners: they want to
be the *senior* partner, they want to have an *edge*, they want to be a little
*more* equal. The list of oxymorons and eupemisms goes on forever. Since the
GPL requires equality, there will always be someone who balks at it, because
they want a perceived payoff, without the same effort or risk that others must

On a slight tangent, I can understand Tivo not wanting to allow strange software
running on hardware for which they offer some kind of warranty, or even acceding
to pressure from the MPAA to keep people from hacking Tivos into "piracy
machines". So my question is, is there more to Tivo's actions than this?
I know that their actions violate the spirit of the GPL, and if they were good
community members, they would have abstained from GPL code completely, but do
their actions make *business* sense? Were they trying to slip through a
loophole because of external pressures, or were they simply running roughshod
over the GPL because they found a loophole?

Geek Unorthodox

[ Reply to This | # ]

Authored by: Ruidh on Thursday, November 16 2006 @ 02:52 PM EST
If Microsoft dosn't distribute the software in question, it isn't subject to the
GPL and thus, no matter how it is worded, it can't strip MSFT of its patent

All my comments on this site are licensed under a Creative Commons License.

[ Reply to This | # ]

Getting Cute with the GPL
Authored by: Anonymous on Thursday, November 16 2006 @ 02:56 PM EST
Get over it PJ.

V3 is not what *EVERYONE* wants. It's what a percentage of GPL v2 people want.

DRM should not be in the license. Remove that and I think you'd get alot more

I'm tired of your "snips" about "see... see... see...",
"v3! v3! v3!"

Why will they not even consider removing DRM from v3?!? Because they're
stubborn. They are not embracing "open source"... but there goes that
whole 'I have to stand by my beliefs crud again.'

Until that happens... v3 will not be widely adopted.

What if... what if there were v3a and v3b of the GPL? 3b is 3a with the DRM. Let
the people that pick the licences determine whether or not to have DRM or not.
Perhaps call them different licenses??? GPLv3wDRM and GPLv3? Not too catchy, but
you get my point...

Just stop beating up the kernel devs... they do an awesome job and they *DO*
have valid points. You're too close to the issue to do your typical
"objective" review of it.

Like other posters pointed out, it was hard to watch you an Linus go back and
forth. Personally, I agree with Linus. However, you drive the site. You
determine the stories. You cannot help but offer your opinion. That is your

This Novell/MS agreement will bring the GPL to the forefront in a lot of places.
If we "deal" with the DRM issue satisfactorily to both sides, then the
collective open source (and "libre") community will stand united.

[ Reply to This | # ]

Still Waiting For Linus To Respond
Authored by: givemelibertyor on Thursday, November 16 2006 @ 03:08 PM EST

<<crikets chirping>>

As bad as this episode has been thus far, it has clarified and reaffirmed for me
that while Linus is a great developer and project manager, he should leave the
strategic vision and planning for GNU/Linux to Richard Stallman.

In my opinion, he owes Richard Stallman and apology for the "insane"
comment he made early on, as in "hey, Richard, I'm sorry. You were onto
something that I could not comprehend (again). There actually are people
working night and day to find a way to defeat and destroy the GPL, and it is
going to take really smart people to stay one jump ahead of them, or all that
we've worked so hard for will be taken from us. Thankfully, we have Richard
Stallman helping here."

Thank you Richard.


[ Reply to This | # ]

Authored by: bap on Thursday, November 16 2006 @ 03:10 PM EST
Forgive me, but what is the TiVo issue that was mentioned?

[ Reply to This | # ]

Sublime Restatement of the Golden Rule
Authored by: racergreg on Thursday, November 16 2006 @ 03:11 PM EST
"If everyone thought about others as being as valuable as

Well said. Beautiful.

[ Reply to This | # ]

The more complex you make the GPL, the *easier* it gets to be "cute" with it.
Authored by: Anonymous on Thursday, November 16 2006 @ 03:20 PM EST
There's no way around that.

Start writing more and more complex clauses to prohibit things like the
Micrsoft-Novell deal, and you'll just open the door to even more bizarre things.

[ Reply to This | # ]

  • That's not true - Authored by: PJ on Thursday, November 16 2006 @ 03:34 PM EST
    • Yes, but... - Authored by: Anonymous on Thursday, November 16 2006 @ 03:59 PM EST
      • Also ... - Authored by: Anonymous on Thursday, November 16 2006 @ 06:00 PM EST
    • That's not true - Authored by: Anonymous on Thursday, November 16 2006 @ 06:37 PM EST
    • That's not true - Authored by: Anonymous on Friday, November 17 2006 @ 06:11 AM EST
I doubt this will survive the censors
Authored by: Anonymous on Thursday, November 16 2006 @ 03:32 PM EST
I am reticent about posting this as almost anything contrary to the party line
around here gets sanitized and "disappeared." When I wrote a post last
year suggesting that PJ's inclusion in a blue-ribbon panel about the GPL may
have affected her objectivity, it was deleted since it was a "personal
attack." So we'll see if this survives the giant white balls.

My question would be, apart from the FSF, Stallman, Moglen, and bloggers like PJ
-- are there any actual developers interested in this? Telling other people what
to do with their efforts and intellectual property is not a contribution to the
community -- it is parasitic behavior.

Did it have no impact at all on PJ's thinking that GPL3 has been universally
rejected? Or is this a weird pride thing, now?

[ Reply to This | # ]

Getting Cute with the GPL
Authored by: Anonymous on Thursday, November 16 2006 @ 03:37 PM EST

Are you guys as big fools as you seem?

You're falling right into Microsoft's trap.


1. Partner with Novell
2. Divide the OSS community
3. Get them to do your dirty work by repudiating Novell/Suse
4. Make the business community doubt Novell/Suse

Effectively, Microsoft turned the GPL crowd into another SCO -- and they dont'
even have to pay the dupes!

[ Reply to This | # ]

Getting Cute with the GPL
Authored by: Anonymous on Thursday, November 16 2006 @ 03:39 PM EST
The Linux kernel team has pretty much stated that they like GPLv2 and are going
to stay with it, even after GPLv3 is released. This means that the
Novell/Microsoft deal will still be valid for the Linux kernel.

One thing that I don't like about GPLv3 is the built-in automatic acceptance of
future GPL versions that haven't yet been written. I take this to mean that
FSF(RMS) can change things as they(he) wish(es) in GPLv4 and beyond because
anything released under GPLv3 is automatically released under later versions as
well? I wouldn't like my code to be at the whim of one small organization's (or
a single person's) beliefs of what free and open source should mean. I know that
I will be jumped all over on this and called a troll, and maybe worse, but isn't
that what the current draft of GPLv3 is saying? We all know that RMS has been
called "extreme" in his views, even by many proponents of open source,
so couldn't GPLv3 just be a way for him to enforce his hidden, more exreme,
agenda for future GPL versions that he won't have to convince people to accept,
since they alreasy released their code under v3 and accepted its wording, so
then they have to accept whatever he puts into v4 and beyond.

[ Reply to This | # ]

This is what GPL3 should be focused on
Authored by: N. on Thursday, November 16 2006 @ 03:39 PM EST
The Tivoisation splits the community, however here's one area that I think most
people can agree on - if done correctly.

First of all, the Stallman quote:

So, GPL version three, along with the explicit patent licence grant, says that
if he is knowingly relying on a patent licence for distributing his version, he
must take some effective step to protect you as well if you distribute.

I think a small bit should be added on to make it explicitly say that this
protection extends to who it's distributed to no matter by what route they got
it. The way Stallman put it above, the MS/Novell deal (or similar) still abides
by it: Novell might not have a patent licence, but Novell's customers do.

However, we don't want this patent language to be over-extending. Skipping over
the argument about whether or not we need software patents and that software
patents are a local rather than global issue, in the world we currently live in
(and for the rest of this post assume it's a world where software patents affect
us), software patent pacts are a good thing for those who make them, and we have
to accept they exist and still allow the companies in those pacts to use GPL3

Getting the wording right and making it understandable to the man in the street,
however, will be difficult. The GPL3 is already described as too complex and
fiddly, and Stallman is already on record that he doesn't want to describe the
limits of the licence in public (which, IMHO, is foolish as it makes all GPL3
coders, users and distributors agree to a licence that they cannot fully
understand or define). The MS/Novell deal, if GPL2-compliant, will be hard to
define in general terms which doesn't also cover legitimate patent pacts.

I think it really will be easier to lobby the relevant govts to scrap software
patents. The UK just did it without even having to put it through parliament -
the courts decided that there was no place for them.

(Now almost completely Windows-free)

[ Reply to This | # ]

Pj is entitled to her opinion. Moglen is being childish, and so are most of you
Authored by: weardlan on Thursday, November 16 2006 @ 03:39 PM EST

Why assert that the v3 license *will* be rewritten to prevent this happening,
when it isn't in fact entirely clear exactly what *is* happening.

Having moglen throw his toys out of the pram creates intransigence on both sides
of the fence.

Proof: witness the quality of debate in response to the article

It will
It wont
it will
it wont
It will
Well I'm taking my license/software home and you can't have it so ner.

[ Reply to This | # ]

Not in harmony with Freedom Zero?
Authored by: Anonymous on Thursday, November 16 2006 @ 03:56 PM EST
Let's say that I'm a SuSE user. Didn't Microsoft and Novell just tell me that I
could use the software (however I wanted)? Isn't that consistent with Freedom

Now let's say that I'm a Red Hat user. Assume, for the sake of argument, that
Linux actually infringes a valid Microsoft patent. Then I don't have the right
to use Red Hat, for any purpose. But that was equally true before the deal.
Assuming the opposite, that it doesn't infringe, then I am free to use it for
whatever I want, just like I was before. Taking away any of those freedoms is
beyond Microsoft's power.

So I don't see how the deal impacts Freedom Zero at all.

But what it does, and I think this is why so many people are upset about it, is
it implies that you need Microsoft's permission to have any of the freedoms.
Basically, Microsoft bought from Novell an open door to throw FUD into the Linux
community, and FUD stinks.


[ Reply to This | # ]

Other Open Source Licenses
Authored by: jstormes on Thursday, November 16 2006 @ 04:00 PM EST
What about the other Open Source Licenses and will Novell do something
"special" with them? Would any of the approved Open Source licenses
prevent this type of patent arrangement?

[ Reply to This | # ]

I didn't realize the Great Eben Moglen
Authored by: Anonymous on Thursday, November 16 2006 @ 04:03 PM EST
was omniscient or prescient.

Which patents is MS trying to assert over GPL software?

Last I read, no one outside MS and Novell knows exactly which patents are
involved. And Novell has explicitly stated that they do not believe there are
any patents involved in this deal that are part of GPL software.

So what kind of crystal ball is Moglen looking into, or is he smoking something
and not sharing?

[ Reply to This | # ]

Getting Cute with the GPL
Authored by: Anonymous on Thursday, November 16 2006 @ 04:08 PM EST
Stupid basic question - how is the process of moving the Linux code base from
GPL v2 to GPL v3 managed? Do all contributors past and present need to
explicitly grant consent to the transition to the more exacting [read dirty
tricks-proof] license?

Thoughts from smarter people appreciated...


[ Reply to This | # ]

What Will Novell Do?
Authored by: Anonymous on Thursday, November 16 2006 @ 04:17 PM EST
It will be interesting to see what happens when the FSF makes the GPLv3
available for use. Even if no one else on Earth uses it, GPLv3 will obviously
become the new license for the software GNU owns the rights to, which I believe
includes things like GCC, Bash, Emacs, Gnome, and a host of other programs.

I just can't see Novell shipping a Linux distribution without GNU's stuff,
regardless of what the kernel developers do, so you have to wonder what Novell
will do when this happens.

They have to be concerned about this, yet they knew this was coming down the

[ Reply to This | # ]

Two separate issues.
Authored by: rao on Thursday, November 16 2006 @ 04:19 PM EST

I do not think it is constructive to lump the Tivo issue and the MS/Novell issue together and say this is why we need GPLv3.

So did Tivo, and in Tivo's case, it was literally in compliance while being out of compliance with the purpose or spirit of the license.

I think it is clear that neither RMS when he authored GPLv2 nor Linus (or other kernel developers) when he licensed code under GPLv2, thought of the Tivo situation. From their recent statements, it is obvious that Tivo has violated the spirit of the license from RMS's perspective but it is just as obvious that they did not violate the spirit of the license from Linus's perspective when he applied it to his work.

I think that if Eben Moglen were to create a GPLv2.1 that addressed the MS/Novell issue only, the kernel developers would start releasing their code under this license the next day. I cannot imagine any significant debate arising from this action and Novell would find themselves alone on an island very quickly.

If they try to use the MS/Novell issue to bully the kernel developers into accepting terms that they don't believe in, then it could be a much longer and more difficult road to acceptance.

[ Reply to This | # ]

No, I think you are the Ignorant one
Authored by: Anonymous on Thursday, November 16 2006 @ 04:19 PM EST
Eben has a copy of the MS/Novell deal. You don't I would bet.
He is a lawyer, you are not I would bet.

Hmmmm... It is not hard to guess where I would put my $$$$$ (but since you
seemed to miss these big points, I'll just state my money is not on you)

[ Reply to This | # ]

    A clue stick might be useful here
    Authored by: Anonymous on Thursday, November 16 2006 @ 04:37 PM EST
    You state
    "Until someone can point to a specific patent and specific software under
    the GPL, they have NO violation."

    Is that the only way you can violate the GPL... And to think you were calling
    them ignorant!

    [ Reply to This | # ]

    A question about V2/V3
    Authored by: Brian S. on Thursday, November 16 2006 @ 04:41 PM EST

    I'm staying out of this arguement and I'm neither a developer or a competent hacker and I'm past my sell by date.

    But I understand the tech issues involved well.

    From a security point of view:

    Can someone from the V3 side tell me how they are going to stop me (hiring someone who is more tuned in) from intercepting their communications between 2 V3 devices?

    Brian S.

    [ Reply to This | # ]

    Software patents
    Authored by: Anonymous on Thursday, November 16 2006 @ 04:59 PM EST
    All this does is clearly illustrate why software patents need to be abolished.
    It's no different in principle than a parent selling their child into slavery.

    [ Reply to This | # ]

    Please delete trolling parent
    Authored by: Anonymous on Thursday, November 16 2006 @ 05:01 PM EST
    My, but the trolls are being thickheaded today.

    The Novell-Microsoft agreement clearly violates the *spirit* of the GPL.

    [ Reply to This | # ]

    Nope, rather watch this space :) nt
    Authored by: SilverWave on Thursday, November 16 2006 @ 05:03 PM EST

    Evolve or Die!
    GPLv3 *OR LATER* has been vindicated
    Just ask micrOvell
    The "OR LATER" is vital
    A GPL set in stone will be eroded over time. -SilverWave

    [ Reply to This | # ]

    Why isn't GPLv2 sufficient here? What loophole?
    Authored by: stevenj on Thursday, November 16 2006 @ 05:04 PM EST
    I'm confused about exactly what "loophole" Moglen is proposing to close. The GPL version 2 explicitly says:
    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.

    So, if Microsoft starts asserting that only Novell has the right to distribute the Linux kernel commercially because of patent XYZ, then Novell can't distribute at all.

    (On the other hand, as long as Microsoft keeps it in the realm of FUD, and doesn't specifically claim any particular GPL software infringes, then it's not clear that the license has any role to play.)

    [ Reply to This | # ]

    GPLv3 *OR LATER* has been vindicated
    Authored by: SilverWave on Thursday, November 16 2006 @ 05:14 PM EST
    I find it hugely ironic who we have to thank for vindicating the reasoning
    behind, and the eventual acceptance of, the "GPLv3 or later" concept

    Talk about the law of unintended consequences :P

    Oh and on a separate point... I have noticed a huge rise in the number of
    astroturfers today... wow someone must be worried ;)

    Evolve or Die!
    GPLv3 *OR LATER* has been vindicated
    Just ask micrOvell
    The "OR LATER" is vital
    A GPL set in stone will be eroded over time. -SilverWave

    [ Reply to This | # ]

    Novell does not understand GPL, to their own detriment.
    Authored by: veatnik on Thursday, November 16 2006 @ 05:14 PM EST
    Novell may be correct in asserting that their agreement with Microsoft does not
    violate the GPL. The thing that they seem to miss is that even if they have the
    agreement "protecting SUSE users" that if Microsoft sues any Linux
    user over patents and wins then all Linux users including Novell must stop
    distribution of Linux. This includes Novell. This is part of the GPL that they
    agreed to when they started distrbuting Linux. In other words Microsoft tricked
    them very well because Microsoft can stop Novells distrubution of Linux at any
    time by winning a patent suit with any third party. They simply have to avoid
    suing a Novell customer. The Microsoft agreement means nothing of benefit to

    Too bad Novell management is so tied up in trying to be tricky instead of just
    doing the right thing.

    [ Reply to This | # ]

    Whats Linus's view on the micrOvell? anybody?
    Authored by: SilverWave on Thursday, November 16 2006 @ 05:27 PM EST
    /goes looking

    ""I prefer to be an optimist, and will happily take the option that
    not everybody needs to be enemies," said Linus Torvalds, the creator of the
    Linux kernel, in an e-mail message. "Let’s see how it all pans

    and this

    "Linux creator Linus Torvalds was surprised by the news. "I literally
    don't know anything about anything. I've seen some of the early Reuters stories
    about the [Wall Street Journal] article, but I don't know any more than you do,
    and probably a lot less."

    However, Torvalds says he's willing to work with Microsoft too. "If they
    start sending me patches, I'll take them as long as they have


    oh well once the weight of (developer) opinion swings towards the GPLv3 it could
    be argued that he will (being pragmatic) just accept it and get on with what he
    loves dealing with the code.

    Evolve or Die!
    GPLv3 *OR LATER* has been vindicated
    Just ask micrOvell
    The "OR LATER" is vital
    A GPL set in stone will be eroded over time. -SilverWave

    [ Reply to This | # ]

    Giving away access to Microsoft patents through GPL?
    Authored by: jonabbey on Thursday, November 16 2006 @ 05:55 PM EST
    So Eblen says "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."

    I don't understand this in the slightest. The GPL is a grant of rights above
    and beyond the copyright default (of "no copying for you!"). I don't
    understand how any revision of the GPL could put obligations on a third party
    like Microsoft to give away access to their patents, even notionally.

    I can see that an attempt to apply something like the MS/Novell agreement to
    code licensed under GPLv3 might have the effect of abdicating one's right to
    distribute material so covered, but that doesn't grant anyone access to
    Microsoft's patents.

    At most, Novell might be in the position of having to forego distribution of
    GPL'ed material, but that's Novell's problem. Microsoft is in no way under any
    GPL obligation if they do not seek to distribute material covered by the GPL.

    Can anyone explain Eblen's reasoning here?

    [ Reply to This | # ]

    Getting Cute with the GPL
    Authored by: drh on Thursday, November 16 2006 @ 06:08 PM EST
    I have now had many days to think about this deal, and all the other happenings
    in the IT world over the last few weeks. It all seems to have a pattern, and
    this is just one part of that pattern. This is a fairly long post because there
    is a lot to, well, rant about. Even at this length I cannot cover all the

    Anyone who did not see this deal coming has never dealt with corporations. This
    has been in the works ever since Novell bought Suse, if not before. Novell
    needed Suse for a lot of reasons, and they have done well with it until now. I
    expected Novell to cave in, they have fought Microsoft many times in the past
    and lost every single time. This time they simply could not afford to lose. I
    believe that had they stayed the course they would have won, Novell obviously
    did not. Neither did their shareholders. Novell said they did this to protect
    their customers, and I believe them. When you are a company your customer is the
    person who buys your product. When you are a corporation your customer is the
    person who buys your stock. Novell is indeed protecting their customer, they are
    protecting their shareholders.

    This is not about GPL v3 versus GPL v2, this is not about indemnification, or
    customers like you and me, or anything but money. Let me say that again, this is
    about money. In order to make money from something, you have to control it.
    Microsoft had no way to make money off Linux because they had no control over
    it. Novell could make money, they had some control. Novell has now bargained
    away that control, and now Novell will make less money, and Microsoft will make
    more money. Microsoft is now entitled to make money off Linux because Novell has
    grated them a means to do so, even if it is only Novell who will be paying.
    Novell will lose again, and this time their mistake, if not rectified, will most
    likely be fatal.

    Novell has also given Microsoft a wedge against the EU comission. Days before
    Microsoft was to be fined, they finalised this with Novell, and now they can
    legally go before the comission and say "look, we have this deal, we are
    sharing, and Novell can verify that. Novell has the contract to supply a
    government within the EU their software, and this deal will insure
    interoperability with their existing Windows installations. We have complied,
    the EU cannot now fine us." While the EU will probably proceed with the
    fines, Microsoft can and will fight, and in the end win. Microsoft will never
    have to give up a line of code either, because Novell has agreed not to disclose
    any. Neat trick. Microsoft can now proceed to sign up other so-called
    competitors to the same kind of arrangement and claim to the EU that they are in
    compliance, even though they never actually meet a single requirement.

    We all know, not think but know, that there is no protected IP (patent or
    copyright) from Microsoft in Linux. If there was, Microsoft would have said so.
    They are, in fact, legally obliged to say so, because if they do not, they lose
    thier rights over whatever material is in there. Microsoft has hinted that Linux
    contains IP problems to every press agent they can find. However, since they
    have not once stated what that violation is, we know that there actually is
    nothing there. Not as of today, that is.

    Microsoft now has the opportunity to submarine parts of Linux. This is something
    I thought was going to happen when the Chinese adopted Linux, but did not. China
    does not have the same laws regarding copyrights and patents that the US or UK
    does. It is entirely legal for them to include something in their Linux
    distributions that violates a copyright or patent over here. My fear was that
    another distribution would pick up on that, and include it in their own, and
    distribute it not knowing of the violation until it was too late. Microsoft now
    has that opportunity, and I believe they will take advantage of it. I believe
    they will coerce Novell to include code that cannot legally be used anywhere
    else, and thus taint the Suse distribution. This means that all code that comes
    out of Novell from this time forward is suspect.

    The downside is that major corporations looking at Linux are insisting on
    interoperability, something Microsoft has effectively blocked at nearly every
    roadway. Without that, Linux will not get into many major operations. There are
    only two ways they will allow the change to occur. First Linux must operate
    seamlessly with Windows, and now only Suse will be able to do that. Second,
    Vista licensing will prove so onerous or costly that it will not be adopted.
    Novell may think they have gained an edge, but in fact at the same time they
    gave that edge away. They gained nothing.

    Interoperability is in fact one of the major failings of Linux in my eyes in one
    single point: Exchange. MS Exchange has long been the target of all this push to
    work with Windows systems, and is the major point of contention when
    corporations are deciding on Linux use. To date, tremendous amounts of effort
    has been put into getting Linux distributions to work with Exchange on Windows
    servers, and to date nothing has succeeded well enough. By comparison, to date,
    on any OS, there is no direct competition to Exchange, nothing that matches what
    Exchange has to offer much less exceed it. Nothing. And that is where Linux has
    failed, there has been no innovation to replace Exchange with something better.
    Exchange is horrid software, but everyone uses it because there is no
    alternative, and corporations have invested so heavily in it they are now
    dependent on it. Linux should never have gone down the road of Exchange
    coordination, never. It should have created something different and better.

    To be fair, every Linux distributor has heard the exact same mantra from every
    single one of their customers: "If it does not work with Exchange we will
    not buy it". When all of your customers say the same thing, you do have to
    take notice. Like the squeaky wheel that gets the grease, Exchange
    interoperability got resources poured into it to try to get the squeaking to
    stop. It has not and never will. The better way is to replace the squeaky wheel
    with a ball bearing unit, and replace Exchange with something better. And market
    it. Then customers will stop saying "Exchange!" and start saying
    "Replace Exchange".

    Linux is not just software, it is a community with a philosophy. This simply
    does not work with a corporation, they are incapable of understanding this
    concept. Even in the smaller businesses I deal with the idea of open source is
    so foreign they cannot comprehend anything of what it means. They would much
    rather pay thousands of pounds on Windows because that model makes some sense to

    I have been a long time Suse user, and had just finished installing SLES 10 on
    servers the day before the announcement. While now would be the right time to
    jump ship to Redhat, I have decided against it. For most people customer loyalty
    is a fickle thing, but that is a double edged sword. I have been a Suse customer
    long enough that I will give them the benefit of some time to make this right.
    If they do not, then next upgrade will not be Suse, it will be Redhat, and it
    will be their own fault. I would like to recommend that others do the same, but
    I have an even stronger recommendation that you follow your own belief in this.

    Just another day...

    [ Reply to This | # ]

    Getting Cute with the IP
    Authored by: Anonymous on Thursday, November 16 2006 @ 06:13 PM EST
    Some may find this of interest especially the latter part
    about IP.

    [ Reply to This | # ]

    You are terribly confused on what the issue at hand is
    Authored by: Anonymous on Thursday, November 16 2006 @ 06:21 PM EST
    Until someone can point to a specific patent and specific software under the GPL, they have NO violation.

    If the issue was "give me proof that Novell's Linux distro violates some Microsoft patient" the above would be a valid point.

    However, the issue at hand is entirely different: "give me proof that the Microsoft-Novell agreement violates the GPL". The specifics of the patent and the specifics of the GPL-ed software are entirely irrelavent here.

    [ Reply to This | # ]

    Microsoft and MPAA
    Authored by: Anonymous on Thursday, November 16 2006 @ 06:35 PM EST

    [ Reply to This | # ]

    Getting Cute with the GPL
    Authored by: Anonymous on Thursday, November 16 2006 @ 07:22 PM EST
    So we have the word "Tivoized" for how Tivo abused the GPL, what about
    what Novell/Microsoft did? We need a word for it. "Noviolated"?

    [ Reply to This | # ]

    Getting Cute with the GPL
    Authored by: Anonymous on Thursday, November 16 2006 @ 08:28 PM EST
    Very well said!

    Your definition of the price of freedom goes well beyond the subject of computer

    The price of freedom is that it is necessary for everyone to play by the rules,
    or there can be no true freedom. The more people break the rules, the more
    freedom is curtailed.

    [ Reply to This | # ]

    • play by the rules - Authored by: Anonymous on Friday, November 17 2006 @ 09:49 AM EST
    Smells like Marketing in here
    Authored by: Anonymous on Thursday, November 16 2006 @ 08:39 PM EST
    I've never seen so many posts have the rhythm and tone of a marketing campaign
    on Groklaw before. Are MicroSuse junior marketing reps working overtime to get
    the "we're good guys" message out through Groklaw? I've lurked here
    for 3yrs and I've never seen anything like this before.

    [ Reply to This | # ]

    Everyone who says Novell is violating GPL
    Authored by: dht on Thursday, November 16 2006 @ 09:03 PM EST
    Under the terms of the covenant, Microsoft is being very *unspecific* as to
    which patents they will not sue Novell customers over.

    If Microsoft can offer a patent pledge without specifying the patents, Novell
    could very well (we have no idea just yet!) be in violation of the GPL without
    any specific patents being mentioned.

    Think very carefully about the differences between a specific patent pledge (or
    license), and a blanket patent pledge (or license). In the first case you are
    allowed to use a specific patent IP, in the second case you are allowed to *any*
    of the patent IP belonging to the holder.

    Now apply that analysis to the GPL section 7.

    MS and Novell cooked up this deal based on slicing and dicing the words in the
    GPL, in order to bypass the clear intention of the GPL. What's good for the
    goose is good for the gander. Can you point to somewhere in the exact wording of
    the GPL that requires specifics for there to be a violation?

    [ Reply to This | # ]

    Authored by: Anonymous on Thursday, November 16 2006 @ 09:26 PM EST
    Legal agreements can be pushed a bit by those who stand to profit and are a
    little creative. To reset the limits we have the legal process -- it is what the
    court is for and what lawyers are paid to do.

    Invest in yellow legal pad manufacturers stocki and keep Groklaw on the
    favorites list -- much more to come.

    [ Reply to This | # ]

    Getting Cute with the GPL
    Authored by: Anonymous on Thursday, November 16 2006 @ 10:30 PM EST
    "You are not required to accept this License in order to receive or run a
    copy of the Program."

    With the reformed copyright now implemented in many countries you can commit a
    copyright breaching act by just running a program. This is something GPLv3
    should really exploit!

    The GPLv3 licence should be reformed such way that if for example Microsoft
    internally, but intentionally, uses a GPL:ed program such as the Linux kernel
    for any reson, then according to the licence: they have waived all their claims
    of patents that may cover any GPL program.

    If they then try to enforcing any patents they would be in breach of copyright

    [ Reply to This | # ]

    Steve says that Novell broke the law
    Authored by: Anonymous on Thursday, November 16 2006 @ 10:51 PM EST
    Ok, so now we have the boss of MS, on tape

    , for the record, saying that Novell pays them for their patents that is in
    Linux. Very clear. So on face value (well, i.e if you want to take Steve on face
    value...I wouldn't but a jury probably will), that means Novell is violating GPL
    (as it stands, i.e GPLv2).
    Well, how will Novell ever survive this. Of course, they say there is not a
    single MS patent in Linux. In which case Novell would not violate GPL. Problem
    for Novell is that if they are right, which most of us totally believes, how
    could they ever with a straight face explain how this could be a value for their
    customers. They can't. They lose whatever they do! MS really knows how to mess
    up their "partners". I think this time it must be something of a
    record. I mean the ink has hardly dried and they already lost...
    I think we'll soon see Novell in a court room, on the defending side and with
    Steve being expert witness against them, then they will have to settle with FSF
    (let see, should we say $400m) if they want to save their face.
    Meanwhile, good old Steve is laughing all the way. I mean this really doesn't
    mean a thing to MS bottom line, but it's a heck of a practical joke from their
    We certainly live in interesting times. I'll just have a beer and happily keep
    hacking on my Ubuntu/GNU/Linux system, waiting for GNU/Solaris/Ubuntu GPLv3 (yes
    I know, implicitly debian too, cheers to them).
    Cheers Novell, have a beer too, while you can afford it.

    [ Reply to This | # ]

    Character Flaw?
    Authored by: Anonymous on Friday, November 17 2006 @ 03:55 AM EST
    Maybe he believes he wasn't wrong. And maybe he believes he has more useful
    things to do than get involved with forums rants with the free as in speech
    zealots. And *if* that's what he thinks then maybe I agree with him.

    [ Reply to This | # ]

    • Character Flaw? - Authored by: Anonymous on Friday, November 17 2006 @ 04:06 AM EST
      • Character Flaw? - Authored by: Anonymous on Friday, November 17 2006 @ 11:12 AM EST
    Challenge Ballmer and Microsoft Now!
    Authored by: gbl on Friday, November 17 2006 @ 04:51 AM EST
    All this discussion is interesting but there is only one important aspect to be resolved. Exactly which patents does Microsoft believe are being infringed? They must have told Novell (insert wry smile) so why not now publish the list?

    Ballmer and Microsoft must be challenged at every opportunity to answer the question. If we can spread the word and get some real world media to start asking the question it would be great.

    If you love some code, set it free.

    [ Reply to This | # ]

    Lanham act violation by Microsoft?
    Authored by: Sunny Penguin on Friday, November 17 2006 @ 06:18 AM EST
    The statement by Steve Ballmer seems to show Lanham act violations:
    Ballmer said Microsoft was motivated to sign a deal with SUSE Linux distributor
    Novell earlier this month because Linux "uses our intellectual
    property" and Microsoft wanted to "get the appropriate economic return
    for our shareholders from our innovation."

    I think after Redhat finishes with The SCO Group Execs it will be time to go
    after Microsoft, but not till SCO is a smoking caldera.

    I suspect Microsoft would very much like the SCO corp veil to not be pierced and
    this statement by the MS CEO may well be an attempted distraction from the
    devastation that will soon befall the last Microsoft FUD partner.
    Also interesting is that Ballmer may have a lot to lose if the SCO corporate
    veil is shattered and he is found to be the "man behind the curtain".

    This message sent from a laptop running Fedora core 6 with Intel wireless
    Everything works....

    [ Reply to This | # ]

    Comment from an amoral shareholder
    Authored by: Anonymous on Friday, November 17 2006 @ 09:10 AM EST
    "...amoral as the alleged shareholders we keep hearing about who we are
    told have such voracious appetites for profit..."

    I had placed an order with my broker to buy a few thousand shares of Novell a
    week before they announced this deal, but I cancelled it when the deal with
    Microsoft was announced. Not because I'm particularly moral, but because I'm a
    long-term investor and I believe that in the long term this will be bad for
    Novell's business.

    We always hear that "past performance is no guarantee of future
    results", but that's an empty statement because past performance is all the
    information that we have. A quick review of the financial performance of
    companies after they made a deal with Microsoft furnishes a compelling reason to
    stay away. Novell's revenue from NetWare is declining, and the company hopes to
    replace that with higher Linux sales. But pissing off all the developers is a
    poor way to do that, in my opinion.

    Of course I want to believe that I'm moral, and I do use GPL software, but I
    have to admit that this decision was strictly business.

    [ Reply to This | # ]

    It could be Fonts...
    Authored by: Anonymous on Friday, November 17 2006 @ 09:15 AM EST
    Microsoft has been getting patents granted for fonts instead of relying on the existing protections for typefaces.

    see here

    Type font
    CLAIM The ornamental design for a type font, as shown and described.
    The FIGURE is a face view of a type font showing my new design.

    how on earth can you get a patent granted for a font????????????? this is the problem with the entire US patent system. It is completely BORKED... and they want the rest of the world to sign up to recognize these borked patents???

    they had three patents granted for Type Fonts on 14th Nov

    remember the fuss that occurred when they pulled their web fonts and tried to stop redistribution of them? They couldn't stop it because the EULA gave permission for redistribution provided the package was left as is. Every distro these days gives you a simple script to run which downloads the package, extracts them and installs them for you.

    With Vista coming out, they've had a chance to change all the default fonts used by Microsoft applications and to use patents to prevent linux distros from using them. I'll bet Suse users get a method of using the new Vista fonts and this is a means to attack Linux as a whole rather than Linux the kernel

    ps, I can't see the figures using firefox on Linux... it seems the US patent office is now using a plugin that's incompatible with Linux... surprise surprise...

    [ Reply to This | # ]

    Getting Cute with the GPL - Red Dress
    Authored by: Anonymous on Friday, November 17 2006 @ 11:05 AM EST
    PJ, the work you are doing is tremendous. I was wondering if the Groklaw
    members could take up a collection to rent billboard space in view of M$'s
    cooperate offices that would simply be a white background, and a Red Dress.

    Let Gates and Ballmer look at that every day and think.

    M$ will not be brought into line by the US Government, or the EU, or some other
    large corporation, But by a simple lady with a red dress.

    This will happen, and it is PJ to thank for our freedoms that we are fighting

    My sincere thanks PJ.


    [ Reply to This | # ]

    Linux needs its own license. Oh, Linus...
    Authored by: Israel Pattison on Friday, November 17 2006 @ 11:13 AM EST
    PJ seems to insinuate in this post that Linux and GPLv3 are destiny and
    therefore we can put a halt to this nonsense. But GPLv3 certainly seems to be
    up in the air with regards to Linux, no doesn't it?

    A very reasonable solution to the licensing issue in Linux is to relicense
    future releases of the kernel under a new Linux-specific license.

    Clearly the FSF has an agenda that is different from Linus' agenda as the Linux
    project leader. Why should Linus and the kernel maintainers have to do this
    ridiculous dance with Stallman & Friends? A Linux-specific license would
    allow Linus to state exactly what can and cannot be done with the kernel.

    The issue of what should and shouldn't be allowed with Linux is a question for
    the copyright holders who issue the licenses.

    Also, there is an inherent risk involved with using public licenses. Copyright
    holders risk that licensees are going to change their code, and they might not
    like the changes. Is there a clause that requires an approval before a licensee
    adds a contraversial feature? If not, find another license.

    [ Reply to This | # ]

    A Massive Misunderstanding of this Issue
    Authored by: Anonymous on Friday, November 17 2006 @ 11:28 AM EST
    I find the comments on this Novell-Microsoft deal to be very interesting. I find
    it very interesting that people are attacking Novell (and Microsoft) for
    adapting their Linux business to the realities of software patents. Whether you
    think that software patents are a good idea, a bad idea, or just a "good
    idea gone horribly wrong", the reality is that software patents exist - and
    are very much legally enforceable (just as RIM about that).

    Now, the way I see this is very different from the way that most people in this
    discussion are seeing things - I see this as a very positive development. The
    reality of Linux is this - it is almost certainly in violation of a great many
    software patents (now, whether those are valid or good patents or not is an
    entirely different issue) - and, at this moment, many organizations are in
    jeopardy over this issue (whether they know it or not). I know that many will
    point to various "indemnification" programs as the solution to this
    problem - but the reality is this - it is not the financial concern that
    typically drives most patent defendants to settle - it is the threat of an
    injunction. Referencing the aforementioned RIM patent issue, it was not the
    threat of a financial hit that caused them to settle - but the threat of having
    their business shut down. I can virtually guarantee you that any organization
    (take a Google, for instance) that was threatened with an injunction to using
    Linux would settle the case so fast that your head would spin. Whatever it would
    cost them to settle would be utterly insignificant compared to the cost of
    shutting down their business for even a short time.

    This patent agreement is going to have a tremendously positive impact on
    Novell's ability to sell SuSE Linux in the enterprise space. I can virtually
    guarantee you that, if you speak to the CEO of a business with his corporate
    counsel in the room, and you point out that YOU have a cross-license agreement
    on patents with Microsoft - and your competitor does not - you are almost
    certainly going to win the deal (no matter what other considerations are
    present). Quite simply, the last thing that some business CEO wants to see is
    his organization getting sued for patent infringement by Microsoft.

    One other point that I would like to make is this - there is a massive
    misunderstanding of Linux's place in the business market going on. Linux doesn't
    have very much of the market (at least, not at this point). If you compare the
    sales of Microsoft Windows to Linux, there is simply no comparison. This is even
    after Microsoft has screwed over these business customers (Software Assurance
    anyone) on many different occasions. Linux right now has a golden opportunity to
    take make some real headroom in the boardroom - but demeaning Novell for doing
    something that is ultimately going to help the adoption of Linux is simply

    If you don't like software patents, if you think they are a really bad idea,
    then don't complain about it to the businesses that are trying to adapt to their
    impact - complain to your congressman. The businesses can't change this reality
    - they can only adapt to it.

    Any CEO that in Novell's position that wouldn't take this deal would be (quite
    justifiably, IMHO) canned by the board so fast your head would spin. If Novell
    had walked from this deal, and then (as would seem likely) were sued by
    Microsoft for patent infringement, then the only question left as to the fate of
    that CEO would be his manner of departure - and how much blood would be
    extracted during the departure process.

    I know that many people will react quite negatively to the idea that Novell
    should be lauded - not defamed. But it is true. Just remember this - when it
    comes to patents - no business is willing to sign a suicide pact just to make
    the FSF happy.

    [ Reply to This | # ]

    Statute of Limitations on Patent Enforcement
    Authored by: Anonymous on Friday, November 17 2006 @ 12:06 PM EST

    How long can MS ignore (alleged) patent infringement in Linux before they loose
    the right to sue?


    [ Reply to This | # ]

    Is it deeper and darker than this
    Authored by: Anonymous on Friday, November 17 2006 @ 12:19 PM EST
    I'm thinking about SCO not passing on to Novell the Microsoft licensing fee
    which Novell contends it should have. Do you think they've used some Microsoft
    IP infringement to get the payment now because there'll be nothing left after
    the IBM/Novell litigation?

    Could this be a way of disguising the payment to Novell for all that Unix stuff
    that SCO apparently gave M$ which Novell might end up saying wasn't SCO's to

    Anyone else with tin hat theories?


    [ Reply to This | # ]

    Getting Cute with the GPL
    Authored by: Anonymous on Friday, November 17 2006 @ 01:24 PM EST
    Lamlaw's comments on this story:

    [ Reply to This | # ]

    35 USC Section 287
    Authored by: Anonymous on Friday, November 17 2006 @ 01:40 PM EST
    "In the event of failure so to mark, no damages shall be recovered by the
    patentee in any action for infringement, except on proof that the infringer was
    notified of the infringement and continued to infringe thereafter, in which
    event damages may be recovered only for infringement occurring after such
    notice. Filing of an action for infringement shall constitute such

    Do they put Patent Numbers on their products?

    Thanks Frank.

    [ Reply to This | # ]

    What if MS simply offered to not sue users who also have a MS OS license?
    Authored by: Anonymous on Friday, November 17 2006 @ 01:54 PM EST
    Take Novell out of the picture for a moment.

    How would FSF / GPL handle a MS "gratuitous" covenant not to sue users
    of GPL software as long as they also have / maintain an ever current / valid MS
    OS license and the GPL software is designed for (their flavor of)
    interoperability with MS software (OS or otherwise)?

    They can certainly do this with customers of a hardware vendor that doesn't ship
    GPL software. But do they even need a "partner in crime" for that?

    Even if they had offered it in this way to the Novell / SUSE customers without
    reciprical payments or agreements, that would still accomplish their goal of
    "Hey, if you want our stuff to work on / GPL stuff or vice versa, we won't
    sue you as long as you will or continue to pay us via our EULA+$$$."

    In other words, if they only agree not to sue their own customers who happen use
    FOSS to interoperate with their software, does that run a foul of GPLv2 or v3 as
    currently proposed or can any contemplated GPLvX keep them from doing it? After
    all, if they can not be specific with this Novell deal, they can certainly be
    less so when it comes to a one-sided license (as in permission) to use their
    patents for a specific purpose (e.g., "Whosoever payeth us will not be
    sueth" - and pedants can get off my case already about ye olde English).

    With that said, can they selectively enforce their patents outside of a
    cross-licensing / covenant not to patent? If so, maybe that's why they need
    another party for this end-around.


    [ Reply to This | # ]

    Ripe for Lanham Act charges?
    Authored by: Anonymous on Friday, November 17 2006 @ 03:23 PM EST
    I'd say at this point, MS is ripe for Lanham Act charges for disparaging Linux
    as something that is an "undisclosed liability". And if Red Hat can
    sue for declaratory relief showing that their activities do not infringe SCO's
    IP, then it's also time to do the same with MS.

    That would put their feet to the fire.


    [ Reply to This | # ]

    Getting Cute with the GPL
    Authored by: Anonymous on Friday, November 17 2006 @ 03:46 PM EST
    This whole M$/Novell is all about three things:

    a. Power.
    b. FUD.
    c. Money.

    By drafting and subsequently signing this agreement, which willfully usurps the
    provisions of the GNU GPL (v2), both corporations have shown, without doubt,
    that they are morally and ethically bankrupt.

    I submit we each do what we can to make them financially bankrupt as well.


    [ Reply to This | # ]

    Getting Cute with the GPL-from Ballmer on the Novell, Linux and patents
    Authored by: Anonymous on Friday, November 17 2006 @ 03:59 PM EST
    Ballmer was saying that it used to be Unix for the server market as MS biggest
    competitor. He now says it's Unix on Intel. My guess is he is talking about

    To the best of my knowledge Unix on Intel is SCO Unix. I don't know of any
    other Unix for Intel. Perhaps someone can tell me of what Steve was thinking of
    if it wasn't SCO?

    Did he mean Linux? Then why didn't he say so. He is continuing to spread the
    SCO FUD even this late in the game.

    [ Reply to This | # ]

    VBA for OpenOffice via Novell
    Authored by: Anonymous on Friday, November 17 2006 @ 05:09 PM EST
    I wonder if this is really a good idea, and it was done by a Novell employee
    quot;> Calc adds support for Excel VBA</a>

    So what do people think?

    [ Reply to This | # ]

    This is so bad...... But I will force myself to take a break
    Authored by: tiger99 on Friday, November 17 2006 @ 05:35 PM EST
    The stupid and obnoxious trolling, I mean, as well as the behaviour of Novell and M$. I can't recall another day like this in the entire history of Groklaw.

    As there has historically seemed to be a correlation with the amount of trolling and imminent adverse court rulings for SCO, I guess that Judge Kimball must be about to throw out at least 99.999% of the IBM case, and almost as much of the Novell case. Either that, or Eben Moglen is going to have a court somewhere ban Novell from distributing Linux. Or just maybe, something even better, but I can't guess what....

    Trolls are very indolent creatures, that normally just laze about under their bridges, and it is only the possibility of imminent defeat that gets them so agitated.

    But I am going to go away and have a quiet weekend away from all of this. Otherwise, I will start getting angry at M$ and Gates and Ballmer, and various other similarly depressing influences, and say things that are not acceptable, and PJ will have to ban me, which will be very counter-productive. I have finally recognised my problem, which is, I suspect, far from being unique, possibly even very common among those who successfully used decent software before the world had heard of Gates. But I need to avoid letting it make me so angry. These pathetic guys, serious liabilities to society because of their dangerously defective products, are just not worth it. I should probably even feel sorry for them, one can't comprehend how to produce good, reliable code, while the other apparently can't even use a chair for its intended purpose.

    In fact, I think I will take a month off. Maybe then the trolling will have abated, and I will be calm and logical.....

    But in the meantime I will just mention that one bit of good news is that the Gates-worshipping IT department (or at least the manager is) at work now has a Linux advocate in their midst, who certainly knows all about configuring Samba and such like (but his comments on Active Directory following a typical serious M$ problem that happened yesterday were not phrased in language suitable for Groklaw), and as a result the SuSE installation that we currently have is about to be replaced by Centos, mainly to avoid any potential legal problems with the GPL. Not that legitimate end users would necessarily be affected in the slightest, but I don't see any point in telling them that and spoiling the fun of sending SuSE 10.1, bug-ridden trash that it is, to /dev/null. But given that Centos works OK, which is very likely, it will be far easier to then justify purchasing Red Hat, with a support contract. It may actually be that the existence of the free Centos actually boosts Red Hat's business. Now, in nay business model but FOSS, that would be a very perverse situation indeed, but with FOSS it looks as if all sensible people win, one way or another.

    [ Reply to This | # ]

    Getting Cute with the GPL
    Authored by: Anonymous on Friday, November 17 2006 @ 06:51 PM EST
    Lately I have been attempting to understand why Linux is
    lagging so when it is
    clearly a superior operating system.

    I believe I am finally understanding.

    One of the classical books that we studied in graduate
    economics was
    “Extraordinary Popular Delusions and the
    Madness of Crowds and Confusión
    de Confusiones” which
    describes the dutch Tuplet mania of a few centuries

    Teckies reading the following reference must feel a little
    like the
    Englishman who on ariving in Holland in the mist
    of the mania ate what he
    preceived as an onion only to
    discover it was a tuplet bulb worth more than his
    net worth. Never did learn how that issue was resolved.

    The Motley
    The Best Blue Chip for 2007: Microsoft
    By Michael Olsen November 9,
    If you can not get to the article that
    way you can go to
    and search for “bnest blue
    One of the most ironic items concerning this is the name
    of the
    publication which believe it or not is very
    respectible financial

    Anyway the issue that has amaised me is why Linux is not
    considered as viable deesktop operating system. The answer
    is simply these
    peoble do not believe it exist or if the
    believe it exist then it is some kids
    toy. Well that is
    not my opinion but then I am not as clueless as these

    Especially in light of
    Microsoft Vista creates DRM insanity

    Piracy as trade

    What I have
    finally undertood is that for a large number
    of people (one could say all but
    about different subject)
    facts are irrelevant. They do what they do because
    that is
    what the do without form or reason.

    [ Reply to This | # ]

    Authored by: Anonymous on Friday, November 17 2006 @ 07:52 PM EST

    Looks like the estimable Mr. Ballmer's head is getting at wee too big for his cap.
    Looking back over a couple of years, Mr. Ballmer's statements in various fora seems to have become increasingly about how everybody better do as he (as Microsoft's appointed representative) says, or else the heavens will darken, the sun refuse to shine, and the earth shake to show the displeasure of the gods.
    Well, pride doeth go before the fall....

    [ Reply to This | # ]

    • Mr.Liability - Authored by: rjh on Saturday, November 18 2006 @ 08:55 AM EST
    Getting Cute with GCC
    Authored by: Anonymous on Friday, November 17 2006 @ 08:41 PM EST
    A PTO search from:

    Issued patents since 1976: MSFT 5802 Novell 279

    Published applications since 2001: MSFT 8093 Novell 37

    MSFT issued patents with “compiler”
    mentioned in the abstract: 35

    MSFT applications with “compiler”
    mentioned in the abstract: 40

    What’s the most crucial program for developing and updating all of free software

    [ Reply to This | # ]

    Microsoft pledge to openSUSE developers still concerns me
    Authored by: leopardi on Friday, November 17 2006 @ 08:55 PM EST
    ...and I still think it is incompatible with even the current GPLv2. See m y posting at opensuse-amd64.

    [ Reply to This | # ]

    I *want* to, I *need* to, Linux will be more popular, my customers *demand*
    Authored by: Anonymous on Saturday, November 18 2006 @ 12:05 AM EST
    So pay the asking price, build your own, or admit you can't compete. Or did you
    think "buy or build" should be "buy, build or steal"?

    [ Reply to This | # ]

    Is that the best that the FSF can come up with?
    Authored by: Anonymous on Saturday, November 18 2006 @ 12:41 AM EST
    "says that if he is knowingly relying on a patent license for distributing his version, he must take some effective step to protect you as well if you distribute."
    Is this it? Is this the best the FSF can come up with? Because, let me tell you, it's ridiculously ineffective.
    Funny thing... at the moment, Novell is not in violation of that clause. Microsoft has said that they believe Linux violates some of their patents, but so far they haven't mentioned with specificity which software component violates which patent. They haven't in the press, and my guess is that they haven't even in private meetings with Novell. So this certainly doesn't rise to the standard of "knowingly relying". As far as Novell knows, it might be possible that none of the millions of patents that Microsoft holds apply to a Linux component, and they have just licensed from Microsoft a lot of hot air, just like EV1 did with SCO. But even if MSFT told Novell precisely which patents they (Microsoft) believe Linux infringes, that still doesn't constitute "knowingly relying". Microsoft can believe whatever they want, but until a judge says so, by virtue of of either a declaratory judgement or a successfull lawsuit against a Linux user/distributor, it ain't a fact. Only when (1) a judge determines that software component XXXX infringes on Microsoft patent #yyyyyyy, and (2) software component XXXX is licensed through the GPL v3 *only* ("GPL v2 or later, at your discretion" is clearly not enough) the text of the GPL v3 kicks in, and it says Novell cannot distribute component XXXX; but then, neither can anybody else, since it has been established that XXXX infringes on Microsoft patent #yyyyyyy (duh!).
    So that clause of the GPL v3 only guarantees that, in cases where it has been established (in a court of law) that a Linux software component does infringe on a Microsoft software patent, Novell doesn't have the unfair advantage over the other distributors of being able to continue to distribute that component. Big deal. The value in the Novell-Microsoft agreement is Microsoft's promise not to sue SuSE customers, and no software license can take that away.
    If anything, all this proves that there are limits to what a license can do, and that it's not the magic bullet that the FSF (and PJ, apparently) thinks it is.

    [ Reply to This | # ]

    does MS forfeit patent rights if it doesn't sue Novell?
    Authored by: ggiedke on Sunday, November 19 2006 @ 08:45 AM EST
    Assume Ballmer is right and there are MSFT-owned patents violated in GNU/Linux.
    As has been repeatedly emphasized, the MS-NOVL agreement does *not* give the
    companies a license to use each other's patents.

    So, if IP of MS were violated on Suse-disks (as Ballmer claims it is) then
    Novell is infringing on these patents by using and distributing Suse-Linux - and
    (under our assumption) MS knows that.

    So what if MS does not sue Novell? Aren't they forfeiting their rights by
    tolerating Novell's (supposed and supposedly known) infringement? Trademarks
    need to be enforced, trade secrets must be kept confidential. What about
    patents? Can I knowingly let company A use them for free and allow it to
    distribute infringing products -- and still sue company B for infringement?

    thanks for clarification

    [ Reply to This | # ]

    • trade secrets - Authored by: Anonymous on Sunday, November 19 2006 @ 01:25 PM EST
    Microsoft claim Linux violates thier IP
    Authored by: csmiller on Monday, November 20 2006 @ 09:51 AM EST
    http ://
    Microsoft are now claiming that there is MS IP in Linux. I assume that they will argue that the Novel deal is a tacit acceptance of this by Novel, and by implication the wider Linux community.

    [ Reply to This | # ]

    Why would this be a GPL violation (v2 or v3)?
    Authored by: matlun on Monday, November 20 2006 @ 01:49 PM EST
    I feel like I am missing something fundamental here (even after reading through
    the thread), but I cant see how this deal is any kind of GPL violation.

    As I see the legal situation (from Novell's standpoint), there are two

    1. Novell have no knowledge of any patent violations in the distributed GPL

    Then there are no issues and the deal makes no difference.

    2. Novell has knowledge of patent violations in the distributed GPL code.

    In this case they have no right to distribute. Again the existence of the deal
    makes no difference (since the protection does not cover redistribution or
    modified code).

    In none of these cases does the existence of the deal make any difference as to
    whether Novell is in violation of the GPL.

    What am I missing?

    [ Reply to This | # ]

    The "purists" are wrong.
    Authored by: Anonymous on Monday, November 20 2006 @ 01:57 PM EST
    Novell compliant with GPL v2 "by a millimeter"? Give me a break. If
    you're compliant, you're compliant. If you're not, you're not. So quit whining
    about Novell's deal with M$...if they are technically GPL compliant, you have
    nothing to whine about. If you just don't like GPL v2, go ahead and change
    it...that's what v3 is for. But don't expect that Novell has any obligation to
    move to v3...the products they have were released under v2. Future kernels
    could be released under v3...would Novell then fork in order to continue
    separately under v2? I doubt it. But I also doubt that Linus will want to go
    to he has said. Really, there's nothing to see here, except that a
    bunch of y'all have got so much M$ hatred that you now consider Novell
    "dirty". That's just ridiculous. And for the record, I don't like M$
    either. But I trust Novell to do the right thing with SuSE. I don't like to
    see unfounded FUD. Even here. For shame, Pamela.

    [ Reply to This | # ]

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