Yesterday, we got the stunning news that the SUSE vouchers have no expiration date, a legal oversight that looks to be the wooden stake in the Novell-Micorosoft patent peace agreement's heart. This is what will happen when someone turns in a voucher after GPLv3 code is available under the new license, which Moglen says is sure to happen:
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.
Or as Eben Moglen puts it:
Novell's activity will be protected by the fact that it was complete as of the date in November, which is the effective date of their deal with Microsoft. [The GPL revisions won't be retroactive.] Microsoft's activity will begin to disperse patent defenses into the community. When GPL 3 goes into effect, every Microsoft coupon handed to somebody, which results in the shipment of a Novell Server Edition product to that coupon-holder, will result in a conveyance of broad patent defenses to parties throughout the community....
The coupons have no expiration date, and Microsoft can be sure that some coupons will be turned into Novell in return for software after the effective date of GPL 3. Once that has happened, patent defenses will, under the license, have moved out into the broad community and be available to anybody who Microsoft should ever sue for infringement.
Since Microsoft is unlikely to find that appealing, and since that is a precise description of its voucher activities, it may well try to find a way to get out of the deal as constituted. It seems to have thought that if it dumped its remaining vouchers on Dell, it could escape the GPLv3 consequences. But Moglen's revelation that vouchers already distributed by Microsoft have no expiration date makes that strategy useless. Don't ask me what Microsoft can do. I see no solution for them except to exit the patent peace agreement business. I'm not a lawyer, of course, and I'm sure Microsoft's are working on this, trying to figure out what to do next.
Today, you can get the slides from Eben Moglen's talk as a PDF. You can also listen to the webinar [zip download], but ironically maybe not all of us, because the webinar organizer, OpenLogic, requires that you use a Raindance Player, and although they make a light version of the player available [RaindancePlayer.exe], it requires Windows to view the .rmv file. So there you are. A touch of irony. The biggest news for the FOSS community breaks, and we can't access it. But Microsoft's lawyers can, and I think they are the ones who truly need this information. Our thanks must go to Todd Bishop of Seattle PI, who broke this story and made portions of the text available.
One of the slides defines propagate:
To "propagate" a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or making modifications that you do not share. Propogation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well. (Sect. 0)
And here is the slide that defines convey:
To "convey" a work means any kind of propagation that enables other parties to make or receive copies, excluding sublicensing. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying. (Sec. 0)
On the slide titled "Patent Defense" it mentions that there are two types of aggression that can be deterred or defended against by GPLv3:
1. Betrayal from within the community
2. External aggression through anti-competitive licensing
The Novell-Microsoft deal represents both. So that is where the wording comes in that I quoted before, titled in the slides "Anti-monopoly Measures":
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. (Sec, 11)
And here's what Moglen calls the "Dancing With Wolves Provision":
You many 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 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]. (Sec. 11)
This is the clause that lets Novell stay in the Linux business, although without the market advantage it thought the patent peace agreement would give them, and it is likely the clause Microsoft thought would allow it to stay in the Novell-Microsoft patent agreement. However, the revelation that the vouchers have no expiration date makes that seem, to me, impossibly dangerous for Microsoft, unless it wishes to donate its entire patent collection that it alleges GNU/Linux infringes to the FOSS community. I don't think so. Here, once again, is how Moglen explained it in his talk:
Our goal, in other words, is to add one more layer of probable defense against the Microsoft patent aggression, which Microsoft has just been busy thumping its tub about this week. So, in summary, Novell will be protected for the long haul, and Microsoft will be endangered for the long haul by GPL 3, and that's as it should be.
"One more layer of probable defense" means this is on top of the already available defense, the implied patent license defense under GPLv2. The first glimmerings of understanding the significance of this news are now appearing. The Register mentions it:
Microsoft will apparently nullify its patent protection agreement with Novell, under the terms of the forthcoming GPL 3 license.
That seems to be the conclusion to be drawn from remarks by Software Freedom Law Centre founding director and general counsel to the Free Software Foundation, Eben Moglen, made yesterday during a discussion on the GPL.
According to the comments, reproduced by the Seattle PI, it seems the act of purchasing Novell's SuSE Linux Enterprise Server (SLES) using certificates that have been distributed by Microsoft will trigger protection for the community from potential prosecution by Microsoft over alleged violations of its IP in Linux and open source.
Well. It's a new concept. It takes a while for all of us to absorb it. Slashdot's Zonk gets it. The key piece, to me, is the fact that there is no expiration date on those vouchers. And don't forget that the vouchers are for support *and* updates. Updates mean software code. So I understand this to mean that Microsoft is conveying to customers the means to obtain GPLv3 code, if a voucher is turned in after the new license is in effect. Is this delicious or what?
I don't know which lawyer wrote the vouchers, but I'm guessing somewhere in Redmond, there is a lawyer beating his head against the wall right about now.