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To read comments to this article, go here
GPLv3 on the Novell-Microsoft Patent Agreement
Wednesday, March 28 2007 @ 11:29 PM EDT

I thought it would be worthwhile to collect from the FSF's rationale document the explanations of Section 11 on patents in GPLv3 draft 3. That is the section that addresses the Novell-Microsoft patent agreement, particularly the fourth and fifth paragraphs. I think when you read it, you'll see the Novell trajectory. So, I will put first, Section 11 and then the explanation of what the section is trying to accomplish.

The rationale document includes condemnatory language of the patent deal and of Novell's conduct. The company certainly can't any longer after this pretend that the deal has not affected how it is viewed by the FOSS community or that it has not disrespected the GPL, I don't think. Note just this one paragraph, from the section "Note on the Microsoft/Novell Deal":

The basic harm that such an agreement can do is to make the free software subject to it effectively proprietary. This result occurs to the extent that users feel compelled, by the threat of the patent, to get their copies in this way.... We take the threat seriously, and we have decided to act to block such threats, and to reduce their potential to do harm. Such deals also offer patent holders a crack through which to split the community. Offering commercial users the chance to buy limited promises of patent safety in effect invites each of them to make a separate peace with patent aggressors, and abandon the rest of our community to its fate.

Dealing with the problems involves, by my reading, a couple of things: first, paragraph 4 of Section 11 addresses the Novell deal, attempting to undo any perceived benefit, but with the goal of protecting the community from patent aggression. Any party that distributes other folks' GPL code and makes patent peace promises to some but not all recipients of copies automatically, under paragraph 4, extends the patent peace promise to all recipients. From the rationale:

As noted, one effect of the discriminatory patent promise is to divide and isolate those who make free software from the commercial users to whom the promise is extended. This deprives the noncommercial developers of the communal defensive measures against patents made possible by the support of those commercial users. The fourth paragraph of section 11 operates to restore effective defenses to the targets of patent aggression.

A patent holder becomes subject to the fourth paragraph of section 11 when it enters into a transaction or arrangement that involves two acts: (1) conveying a GPLv3-covered work, and (2) offering to some, but not all, of the work’s eventual users a patent license for particular activities using specific copies of the covered work. This paragraph only operates when the two triggering acts are part of a single arrangement, because the patent license is part of the arrangement for conveying, which requires copyright permission. Under those conditions, the discriminatory patent license is “automatically extended to all recipients of the covered work and works based on it.”

This provision establishes a defense to infringement allegations brought by the patent holder against any users of the program who are not covered by the discriminatory patent license. That is to say, it gives all recipients the benefit of the patent promise that the patent holder extended only to some.

As for the future, to prevent any other such deals, paragraph 5 addresses that. You'll note that there is a section in brackets, a date cutoff, and the FSF is particularly asking for input and comments on that paragraph. The concern is that it lets Novell off, but the following sentence from the rationale expresses the hope that paragraph 4 is sufficient: "Novell expected to gain commercial advantage from its patent deal with Microsoft; the effects of the fourth paragraph in undoing the harm of that deal will necessarily be visited upon Novell."

I take it that the focus is upon preventing Microsoft from being able to pursue its patent strategy, and rather than "punishing" Novell, instead protecting noncommercial developers, and thus depriving Novell of economic benefits of the deal. It really makes it more important than ever that the kernel guys realize that if they do not go to GPLv3, they will be enabling Novell's patent deal and preventing the effects of GPLv3 from taking effect. So, if there are issues, now is the time to try to work them out.

I'm still absorbing it all, and I'm sure you are too, so this is just to focus our brains. Do read the rationale document in its entirety. There are footnotes, for example, that I am not reproducing here.

First, here's Section 11:

11. Patents.

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims in its contribution, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contribution.

For purposes of the following three paragraphs, a "patent license" means a patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent.

If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) disclaim the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. "Knowingly relying" means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid.

If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license providing freedom to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a patent license (a) in connection with copies of the covered work conveyed by you, and/or copies made from those, or (b) primarily for and in connection with specific products or compilations that contain the covered work, which license does not cover, prohibits the exercise of, or is conditioned on the non-exercise of any of the rights that are specifically granted to recipients of the covered work under this License[, unless you entered into that arrangement, or that patent license was granted, prior to March 28, 2007].

Nothing in this License shall be construed as excluding or limiting any implied license or other defenses to infringement that may otherwise be available to you under applicable patent law.

And here is the explanation from the rationale document:

3.4 Regulation of Collusive Practices

Section 7 of GPLv2 (now section 12 of GPLv3) has seen some success in deterring conduct that would otherwise result in denial of full downstream enjoyment of GPL rights. Experience has shown us that more is necessary, however, to ensure adequate community safety where companies act in concert to heighten the anticompetitive use of patents that they hold or license. Previous drafts of GPLv3 included a “downstream shielding” provision in section 11, which we have further refined in Draft 3; it is now found in the third paragraph of section 11. In addition, Draft 3 introduces two new provisions in section 11, located in the fourth and fifth paragraphs, that address the problem of collusive extension of patent forbearance promises that discriminate against particular classes of users and against the exercise of particular freedoms. This problem has been made more acute by the recent Microsoft/Novell deal.

3.4.1 Definition of “Patent License” The term “patent license,” as used in the third through fifth paragraphs of section 11, is not meant to be confined to agreements formally identified or classified as patent licenses. The new second paragraph of section 11 makes this clear by defining “patent license,” for purposes of the subsequent three paragraphs, as “a patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent.” The definition does not include patent licenses that arise by implication or operation of law, because the third through fifth paragraphs of section 11 are specifically concerned with explicit promises that purport to be legally enforceable.

3.4.2 Downstream Shielding The downstream shielding provision of section 11 responds particularly to the problem of exclusive deals between patent holders and distributors, which threaten to distort the free software distribution system in a manner adverse to developers and users. Draft 2 added a source code availability option to this provision, as a specific alternative to the general requirement to shield downstream users from patent claims licensed to the distributor. A distributor conveying a covered work knowingly relying on a patent license may comply with the provision by ensuring that the Corresponding Source of the work is publicly available, free of charge. We retained the shielding option in Draft 2 because we did not wish to impose a general requirement to make source code available to all, which has never been a GPL condition....

3.4.3 Discriminatory Patent Promises A software patent forbids the use of a technique or algorithm, and its existence is a threat to all software developers and users. A patent holder can use a patent to suppress any program which implements the patented technique, even if thousands of other techniques are implemented together with it. Both free software and proprietary software are threatened with death in this way.

However, patents threaten free software with a fate worse than death: a patent holder might also try to use the patent to impose restrictions on use or distribution of a free program, such as to make users feel they must pay for permission to use it. This would effectively make it proprietary software, exactly what the GPL is intended to prevent.

Novell and Microsoft have recently attempted a new way of using patents against our community, which involves a narrow and discriminatory promise by a patent holder not to sue customers of one particular distributor of a GPL-covered program. Such deals threaten our community in several ways, each of which may be regarded as de facto proprietization of the software. If users are frightened into paying that one distributor just to be safe from lawsuits, in effect they are paying for permission to use the program. They effectively deny even these customers the full and safe exercise of some of the freedoms granted by the GPL. And they make disfavored free software developers and distributors more vulnerable to attacks of patent aggression, by dividing them from another part of our community, the commercial users that might otherwise come to their defense.

We have added the fourth and fifth paragraphs of section 11 to combat this threat. This subsection briefly describes the operation of the new provisions. We follow it with a more detailed separate note on the Microsoft/Novell patent deal, in which we provide an extensive rationale for these measures.

Section 11, Fourth Paragraph. As noted, one effect of the discriminatory patent promise is to divide and isolate those who make free software from the commercial users to whom the promise is extended. This deprives the noncommercial developers of the communal defensive measures against patents made possible by the support of those commercial users. The fourth paragraph of section 11 operates to restore effective defenses to the targets of patent aggression.

A patent holder becomes subject to the fourth paragraph of section 11 when it enters into a transaction or arrangement that involves two acts: (1) conveying a GPLv3-covered work, and (2) offering to some, but not all, of the work’s eventual users a patent license for particular activities using specific copies of the covered work. This paragraph only operates when the two triggering acts are part of a single arrangement, because the patent license is part of the arrangement for conveying, which requires copyright permission. Under those conditions, the discriminatory patent license is “automatically extended to all recipients of the covered work and works based on it.”

This provision establishes a defense to infringement allegations brought by the patent holder against any users of the program who are not covered by the discriminatory patent license. That is to say, it gives all recipients the benefit of the patent promise that the patent holder extended only to some. The effect is to make contributing discriminatory promises of patent safety to a GPL distribution essentially like contributing code. In both cases, the operation of the GPL extends license permission to everyone that receives a copy of the program.

Section 11, Fifth Paragraph. The fourth paragraph of section 11 gives users a defense against patent aggression brought by the party who made the discriminatory patent promise that excluded them. By contrast, the fifth paragraph stops free software vendors from contracting with patent holders to make discriminatory patent promises. In effect, the fifth paragraph extends the principle of section 12 to situations involving collusion between a patent holder and a distributor.

Under this provision, a distributor conveying a GPL-covered program may not make an arrangement to get a discriminatory patent promise from a third party for its customers, covering copies of the program (or products that contain the program), if the arrangement requires the distributor to make payment to the third party based on the extent of its activity in conveying the program, and if the third party is itself in the business of distributing software. Unlike the fourth paragraph, which creates a legal defense for targets of patent aggression, the consequence for violation of the fifth paragraph is termination of GPL permissions for the distributor.

3.4.4 Note on the Microsoft/Novell Deal The business, technical, and patent cooperation agreement between Microsoft and Novell announced in November 2006 has significantly affected the development of Draft 3. The fourth and fifth paragraphs of section 11 embody our response to the sort of threat represented by the Microsoft/Novell deal, and are designed to protect users from such deals, and prevent or deter the making of such deals.

The details of the agreements entered into between Microsoft and Novell, though subject to eventual public disclosure through the securities regulation system, have not been fully disclosed to this point. It is a matter of public knowledge, however, that the arrangement calls for Novell to pay a portion of the future gross revenue of one of its divisions to Microsoft, and that (as one other feature of a complex arrangement) Microsoft has promised Novell’s customers not to bring patent infringement actions against certain specific copies of Novell’s SUSE “Linux” 21 Enterprise Server product for which Novell receives revenue from the user, so long as the user does not make or distribute additional copies of SLES.

The basic harm that such an agreement can do is to make the free software subject to it effectively proprietary. This result occurs to the extent that users feel compelled, by the threat of the patent, to get their copies in this way. So far, the Microsoft/Novell deal does not seem to have had this result, or at least not very much: users do not seem to be choosing Novell for this reason. But we cannot take for granted that such threats will always fail to harm the community. We take the threat seriously, and we have decided to act to block such threats, and to reduce their potential to do harm. Such deals also offer patent holders a crack through which to split the community. Offering commercial users the chance to buy limited promises of patent safety in effect invites each of them to make a separate peace with patent aggressors, and abandon the rest of our community to its fate.

Microsoft has been restrained from patent aggression in the past by the vocal opposition of its own enterprise customers, who now also use free software systems to run critical applications. Public statements by Microsoft concerning supposed imminent patent infringement actions have spurred resistance from users Microsoft cannot afford to alienate. But if Microsoft can gain royalties from commercial customers by assuring them that their copies of free software have patent licenses through a deal between Microsoft and specific GNU/Linux vendors, Microsoft would then be able to pressure each user individually, and each distributor individually, to treat the software as proprietary. If enough users succumb, it might eventually gain a position to terrify noncommercial developers into abandoning the software entirely.

Preventing these harms is the goal of the new provisions of section 11. The fourth paragraph deals with the most acute danger posed by discrimination among customers, by ensuring that any party who distributes others’ GPL-covered programs, and makes promises of patent safety limited to some but not all recipients of copies of those specific programs, automatically extends its promises of patent safety to cover all recipients of all copies of the covered works. This will negate part of the harm of the Microsoft/Novell deal, for GPLv3-covered software. In addition to the present deal, however, GPLv3 must act to deter similar future arrangements, and it cannot be assumed that all future arrangements by Microsoft or other potential patent aggressors will involve procuring the conveyance of the program by the party that grants the discriminatory promises of patent safety. Therefore, we need the fifth paragraph as well, which is aimed at parties that play the Novell role in a different range of possible deals. Drafting this paragraph was difficult because it is necessary to distinguish between pernicious agreements and other kinds of agreements which do not have an acutely harmful effect, such as patent contributions, insurances, customary cross-license promises to customers, promises incident to ordinary asset transfers, and standard settlement practices. We believe that we have achieved this, but it is hard to be sure, so we are considering making this paragraph apply only to agreements signed in the future. If we do that, companies would only need to structure future agreements in accord with the fifth paragraph, and would not face problems from past agreements that cannot be changed now. We are not yet convinced that this is necessary, and we plan to ask for more comment on the question. This is why the date-based cutoff is included in brackets.

One drawback of this cutoff date is that it would “let Novell off” from part of the response to its deal with Microsoft. However, this may not be a great drawback, because the fourth paragraph will apply to that deal. We believe it is sufficient to ensure either the deal’s voluntary modification by Microsoft or its reduction to comparative harmlessness. Novell expected to gain commercial advantage from its patent deal with Microsoft; the effects of the fourth paragraph in undoing the harm of that deal will necessarily be visited upon Novell.


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