Is the Microsoft-Novell deal dead on arrival?
The potentially historic Microsoft-Novell pact announced last week, whereby Microsoft would grant patent peace to users of Novell's Suse Linux software in exchange for royalty payments paid by Novell to Microsoft, will be dead by mid-March, promises Eben Moglen, the general counsel of the Free Software Foundation (FSF). The FSF controls the license that governs the distribution of Linux and many other key forms of free and open-source software.

The license, known as the GNU General Public License (GPL), had already been in the process of revision. In an interview with me this morning, Moglen promised that the foundation will now make "further changes" to the GPL that will make crystal clear that the Novell-Microsoft pact, or any similar pact, will violate it.

"It will surely violate GPL version 3," said Moglen, referring to the forthcoming version. Version 3 had been expected to be in place no later than March 15, 2007, though Moglen said he was uncertain whether the new circumstances would affect that schedule. "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."

At 9:13 a.m. (Eastern Time) Legal Pad emailed Novell (NOVL) and Microsoft (MSFT) seeking comment. Microsoft referred the inquiry to Novell. At 3:45 p.m. Novell's chief marketing officer, John Dragoon, sent back a statement. It's printed below this post in its entirety.

Though the Novell-Microsoft deal also included components that called for technological and marketing cooperation between the companies, the FSF objects to only one of the legal components of the deal. That is the provision that would grant patent peace to those users of Linux who sign service and support agreements with Novell, but not to other users of Linux. By granting patent peace to Novell's Linux users, the pact was seen by many in the Linux community as implicitly menacing all other Linux users, by heightening the threat that Microsoft might sue them.

Moglen offered no opinion on whether the Microsoft-Novell deal violates the GPL currently in effect (known as version 2), but merely pledged that version 3 would clearly bar such "discriminatory" deals. Moglen also heads the Software Freedom Law Center, whose clients include such free and open-source projects as Samba and Wine.

"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."

The Microsoft-Novell pact had been welcomed by the chief technology officers of many Fortune 500 companies, who just want to be able to use free and proprietary software, to have them interoperate smoothly, and to not have to worry about incurring patent suits. Nevertheless, the free and open-source developer community--which produces such software--has generally received the deal with great suspicion and trepidation, if not outrage.

Regular readers of this blog may wonder if the deal Moglen is effectively declaring to be dead on arrival is the same one that I described just five days ago (in the previous post) as "potentially paradigm shifting." The answer is: well, yes. But Friday was a more naive and hopeful era.

NOVELL'S STATEMENT:

Novell remains committed to its historic agreement with Microsoft regarding Linux and Windows interoperability. This agreement was in direct response to the hundreds of thousands of customers who use both Linux and Windows who simply wanted both operating systems to work well together. Mr Parloff suggests he has discovered similar support from enterprise clients who "just want to be able to use free and proprietary software, to have them interoperate smoothly..."

Our second objective remains the growth of Linux and Open Source. By addressing issues of interoperability, we advantage Linux in the marketplace and in doing so make it a more compelling alternative to UNIX and other operating systems (yes, even including Windows). While Microsoft may believe they are advantaging Windows, we believe in the power of the open source community. In any case, it's called competition and the ultimate winner is the customer. The technical and business collaboration elements of the Novell and Microsoft agreement are the most compelling and valuable agreements from the customer perspective and they will serve to promote open source.

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.

Novell has entered into a transaction with Microsoft that will address a real customer issue: getting heterogeneous IT environments to function better. Novell has been a leader in the open source community; one who has made important technical contributions and one who has been on the forefront of providing legal protection (through indemnification for our customers, our patent pledge, and our co-founding of the Open Invention Network alongside IBM, Sony, Philips, and Red Hat). Novell has contributed more than 10 million lines of code to Linux and the open source community, and we support more than 250 engineers whose full-time job is to develop open source software.

There are various opinions about the Novell-Microsoft agreement. We continue to believe that by focusing on the needs of the market and the long-term growth of Linux, the agreement will generate the results that Mr. Parloff thought possible last week when he was imagining a more "hopeful era." Our customers hope so, too.

John Dragoon
Senior Vice President - Chief Marketing Officer
Novell
Posted by Roger Parloff 9:23 AM 24 Comments comment | Add a Comment

I think the FSF's stance is about not compromising. This deal basically gives Novell preferred treatment among Linux providers based on their ability to pay fees to Microsoft that an individual or non-profit organization wouldn't be able to afford. Linux -- and free software in general -- is about freedom of the individual, so a deal like this goes against the entire premise of free software.
Posted By Dave, Philadelphia, PA : 11:46 AM  

It seems to be a rather bold statement from Moglen to summarily declare "...We will change the law such that . . . we will reverse the legal consequences of this deal."

When did FSF become a part of our Legislative System? Who is my "elected representative" in FSF ?
Posted By Charlie, Grand Rapids, MI : 12:30 PM  

The net effect of this will be that GPL v3 will be DOA. Already we see that Linus is not happy with GPL3 and there is nothing that forces GPL 3 to be anyones license - it is up to individual projects to decide what their license is. I predict very few will choose GPL 3 and GPL 3 will become largely irrelevant.
Posted By Bob, Ottawa, Ontario : 3:21 PM  

I think this is disappointing. This was going to be simply an option to Novell users. It is not like this was going to transform Linux or "harm" other users. Anyone is free to use the other distros. The word "Microsoft" sends up red flags everywhere but the fact is we are talking about applications for Linux...and fewer and fewer of those are actually free. Look at Linux forensic software.
Posted By John, Pittsburgh, PA : 3:29 PM  

My bet is that by the end of March the majority of projects using the GPLv2 license will switch to GPLv3. Of course the kernel will not be one of them because that would be nearly impossible for several reasons. As someone who currently writes code and releases it under the GPL I can say that Novell just doesn't get it. Our #1 priority is not "enterprise-wide adoption" or the "computing needs of customers". Those are Novell's #1 priorities. Our #1 priority is that our code remain Free (as in freedom) and unencumbered. Everyone should have the right to modify the code but they are required to give that same right to anyone they distribute the code to. 99.9% of the code Novell is distributing in SUSE is not theirs. They are acting like it is. If Microsoft has a patent issue then they need to let us know what that issue is so we can take care of it, not make secret deals and insinuations. They are getting very close to what I would consider extortion. All of my projects will be GPLv3 by the end of March, no doubt about it.
Posted By Open Source Contributor : 8:40 PM  

Charlie, I bet he meant 'license'..

e.g.

we will change the *Licence* such taht
we will reverse the legal consequences
of this deal..

e.g. user of this software agrees
that offering indemnity against
a particular version distributed by
a particular company should be considered
as an offer of indemnity to all users
of the software, or that you won't sue,
etc (IANAL)
Posted By CT WDC : 10:02 AM  

From what I hear, this deal will actually drive a lot of projects that were doubtful into GPL3, so it will be anything but DOA (not that it would be anyways, given how large a part of every GNU/Linux system is actually GNU). Many people now see the need, not to punish Novell, but to protect themselves from backstabs like these in the future.
Posted By Stoffe, Sweden : 10:59 AM  

Will the FSF ever accept that business is not based on ideology?

By working out this deal, Microsoft is admitting that, yes, Linux is real and here to stay. That's great news for Linux. They are forging new grounds in trying to work out some deal that will allow them to function effectively (from their perspective) in a changed landscape. Remember, what matters to enterprise technology and information leaders is that they do not put their organization at risk when making technology decisions. With this sort of licensing option available, they can now do so.

Now tell me - for years the FSF has said that GPLv2 is solid; that Linux users are protected from lawsuits by virtue of GPLv2; and that there is no way in which any company can assert its "ownership" of Linux. How, exactly, has that changed because of the MS-Novell deal? Is the FSF admitting now, by virtue of the "worry that other Linux users will not be protected", that maybe their position on GPLv2 is based on, err, less than legal fact?

Or is it the case, as I suspect it is, that the FSF has an allergy to anything that smells of capitalism, and especially if the word Microsoft is somehow attached to it?
Posted By Barak, Vallejo, CA : 11:05 AM  

Since the FSF controls GCC and a few other large (& important) projects, GPL v3 will certainly be used for some of the core operation of Linux. So, GPL v3 won't ever be "DOA"...it may not get the breadth of adoption that v2 has presently, but it will be adopted.

The curious question will be whether Novell will fork the FSF projects from their latest v2-licensed versions to keep them at v2. That would be...interesting
Posted By ponderous : 11:26 AM  

As a user of Linux since 1998 I have bought almost every version from most major suppliers: RED HAT, SUSE, MANDRAKE (Mandriva)even Caldera in the past. I used them all to learn how to use them and also to see which I preferrred. In the end, I like SUSE. It is a bit strange that Cladera and NOVELL are both involved in a squabble about LINUX with both being based in UTAH. Maybe it is in the water? Just kidding. I have seen the deal everyone is complaining about and I can only say that AS AN END USER OF SOFTWARE I will continue with SUSE since I found it is what I like. Even though we all love to hate Microsoft at times they have made many lasting positive contributions to computing over the years. If they are finally seeing that LINUX is needing to be addressed as a working partner then the deal with NOVELL/SUSE should benefit us all. My only question is money based: Why did either of them have to do any more than agree to work together and waive all fees or payments in either direction?
Posted By zxr250cc, Apec, NC : 11:50 AM  

a) WHY is it necessary to speculate when all you have to do is wait just a little bit to SEE what happens?

b) WHAT has actually changed for any (open source) developer, compared to if the deal would never happened? I don't get it - why is a deal between those two companies "backstabbing"? Are they forcing you to DO anything, os is anything (good or bad) happening TO YOU? I don't see either! Test: Imagine you never heard about this deal. Except for your KNOWLEDGE of it, what else is or is about to be different in your life? Why this religious outrage?

c) This is not a statement, more of a question... No one can simply change the license for any project, since the copyrights for individual pieces of code remain with the respective authors (that I'd claim is a fact). So if e.g. "gcc" is to be released under GPLv3 from now on, all contributors whose code is on there would have to agree (that I'm not sure of - ?). There is no ONE entity that owns any of hte larger open source projects, it's "group-owned" at best. I just don't know what happens - legally - if a majority wants to change the license and a minority doesn't want to.

d) It is telling that especially people who seem to be full of fear and hate don't use real names for their postings.
Posted By Michael Hasenstein, Rudolstadt, Germany (http://hasenstein.com/) : 11:52 AM  

Although the FSF controls GCC, unless they change the fundamental nature of their licence to make any code compiled with gcc now encumbered by the GPL V.3, this doesn't extend their power.
If your position is that no distros will be able to ship without GPL V.3 software, then you are probably correct.
The biggest risk with V.3 is the possible splintering of software projects along the licence.
Since some of the provisions proposed for V.3 are potentially non-starters for embedded systems, or security critical systems (on these systems it is often required that all software that is allowed to run must be authenticated through some trust mechanism, and the early reads that I did of the proposed licence would require that a distributor of those devices would be required to provide to anyone with the rights to the code, also the ability to sign the result), there would quite probably be a division along the licence boundary. Embedded developers would continue to use the last version licenced with a pre-V.3 licence, and over time this would result in them modifying and enhancing the code.
Now the good news is that the GPL protects all of the existing software even from RMS and the FSF. They can create a new GPL licence (designated V.3), but not even they have the power or right to un-licence the existing software under the existing current licence.
Posted By Rich, Carlsbad, CA : 11:56 AM  

B Bob in Ottawa said GPL V3 would be largely DOA. Unfortunately, it appears the Samba team may already be taken in by Moglen et al.'s fear-mongering.

History has shown us that the oppressed almost always, eventually, take up the tools of their oppressors: FUD.

Perhaps naively, but it 1) appeared MS gave Novell money now, for Novell making payments later; 2) MS will help sell [Suse] linux -- that means MS is distributing and bound by GPL2 code; 3) MS promised no patent attacks on linux software used by Novell. That means the _SOFTWARE_ is free -- the promise wasn't protecting Novell users, per se, but the linux software. Any other distro that uses the same software will find most of their software is covered by the MS-Novell deal.

To me that read that almost all Linux software was now free of patent threats from MS -- no matter what distro it is in -- if it is in Novell's distribution, it is covered software.

It makes sense that this wouldn't apply to all GPL software -- since that would expose MS to unlimited loss of patent protection should any GNU software choose to START violating patents. Presumably, Novell might choose to avoid software that blatently violates patents. But to ask that MS never sue anyone over GPL code due to patent infringement is asking too much out of a vendor-vendor deal.

Seems like some "free" SW people can't accept good news -- they have to kick a gift horse in the mouth and create a problem where one previously did not exist.
Posted By Linda, Santa Cruz, CA : 12:41 PM  

Barak:

Ah, the "IT pragmatists" managed to escape from their clinical treatment rooms again...

"Remember, what matters to enterprise technology and information leaders is that they do not put their organization at risk when making technology decisions."

News flash: IT business has been putting their organizations at great risk for more than a decade now by continually being swayed by PR and adopting IT infrastructure which was (and arguably still is) frequently not up to the task of reliable operation (trust me, I know it, I can see it all the time in the company I'm working for which still employs many more Windows servers than it ever should have; planned or unplanned downtime happens about once a week currently, and it's VERY ANNOYING, as were the 3 days of complete virus downtime we had last year).

Not to mention that Novell is - via shady contracts - trying to "heal" a brokenness ("business incompatibility" between Windows and Linux) which has been caused by Microsoft mostly, not the Linux ecosystem. While Microsoft is employing a ton of undocumented proprietary protocols or frequently even disrupting public open protocols with their own "damaged" and incompatible version (SMTP, Kerberos, ...), Linux is fully supporting open protocol standards and trying to route around the Microsoft damage by developing compatibility code whereever possible (e.g. Samba for Windows Networking, Wine for Win32 API, Linux NTFS code for compatibility with woefully under-documented Windows NTFS, OpenOffice for .doc format compatibility, ...).

Spreading confusion about what constitutes capitalism ("FSF against capitalism?") and what constitutes a BLATANTLY ABUSIVE near-complete Monopoly completes your rather trollish posting.

Please spare me your goddamn "pragmatism", thanks.

The Microsoft FUDsters are flying rather high again, it seems.
Posted By Andi, Southern Germany : 12:48 PM  

I think that it is not so simple to re-release GPLv2 code as GPLv3 code. My understanding is that code contributed back to a GPL project is necessarily licensed under the original license. For example, if I write a GCC front-end for a new language and it is accepted as part of the mainline code, the new code inherits the license that the code was originally released under, say GPLv2. If the GCC is re-released under a new license, say GPLv3, my code doesn't also get the new license. The GCC project must explicity ask my permission to re-release the code under a new license, if it so desires. This would be a difficult task for a large software project with many contributors. The question: Is GPLv2 compatible with GPLv3 which places additional restrictions on the licensee?
Posted By Chris H, Portland, OR : 3:48 PM  

The Novell deal is very likely to force Linux into GPLv3, or a version of GPLv2+ that addresses the issue. Otherwise, all other Linux distributions are at a terrible disadvantage, relative to Novell. Really, they should have asked before they tried to steal everybody's work.
Posted By Tony, Fergus Falls, Minnesota : 4:46 PM  

"c) This is not a statement, more of a question... No one can simply change the license for any project, since the copyrights for individual pieces of code remain with the respective authors (that I'd claim is a fact). So if e.g. "gcc" is to be released under GPLv3 from now on, all contributors whose code is on there would have to agree (that I'm not sure of - ?). There is no ONE entity that owns any of hte larger open source projects, it's "group-owned" at best. I just don't know what happens - legally - if a majority wants to change the license and a minority doesn't want to.

(...)

Posted By Michael Hasenstein, Rudolstadt, Germany (http://hasenstein.com/) : 11:52 AM"

---

When you submit code to the FSF, they require that you assign the copyright to the FSF - you transfer that copyright holder status to them.

For the GCC, the FSF holds the copyright for it, seeing as how all contributions were required to reassign copyright - so in the case of FSF software - YES, they can re-license it - they have the copyright.

The FSF has a strong legal background, and they saw this as a potential problem, and took steps to prevent it long ago.
Posted By Kevin T, Tuscaloosa, AL : 4:04 AM  

Making the statement that the deal will be dead by March is pretty uninformed considering it is going to take a long time for GPLv3 adoption to occur. It is going to be a long long time, probably years, if ever, before the kernel converts to it. Novell and Oracle and Microsoft, and Sun etc are all big enough to fork any project they want to keep it in GPLv2 forever. Maybe this is where commercial and non-commercial Linux part ways?
Posted By Kennon, Visalia, CA : 12:12 PM  

"b) WHAT has actually changed for any (open source) developer, compared to if the deal would never happened? I don't get it - why is a deal between those two companies "backstabbing"?"

Stupid example, Novell can now put code in which violates MS patents, no one esle knows they have done this. They are now safe and everyone else is in trouble.

Would you like me to try and imagine more?

all the best,

drew
Posted By drew Roberts, Nassau, Bahamas : 1:55 PM  


When you submit code to the FSF, they require that you assign the copyright to the FSF - you transfer that copyright holder status to them.


Wrong. They ask that you assign copyrights to them.
Posted By Sean, Northeast Ohio : 3:09 PM  

None of this affects European Linux and open-source developers since software patents are illegal in the European Union (the of the largest and richest markets in the world). I'm therefore urging all open-source projects to be transferred to the EU.
Posted By Lankshar, Den Haag, the Netherlands : 4:02 PM  

"But Friday was a more naive and hopeful era."

Best casually understated mea culpa ever.
Posted By Edgar Van Peebles, Oakland, CA : 11:33 PM  

It is not necessary for the majority of GPL2 projects to be
relicensed under GPL3. If even 10% of them are (probably including
major items like GCC) then Novell has huge problems. It will be
cut of from the "upstream". The options are to replace the GPL3
packages or to fork them and take on the responsiblilty of development -
or just to fall behind the other distributions. Any way it will hurt.

Novell did not develop Linux. It depends, quite rightly, on the goodwill
of thousands of developers worldwide, The GPL ensures that they
will have the final say on this dubious marriage.
Posted By Peter Wainwright, Abingdon, UK : 3:08 PM  

Andi says "trust me," then goes on to detail Windows problems he's experiencing which are far, far from universal.

Andi: If your Windows servers are going down once a week and getting infected with viruses several times per year, you aren't in a good position to analyze Microsoft's contribution to computing because it's clear that your organization doesn't have the right skills to maintain Windows systems.

*Every* OS requires care and feeding. We manage a large number of mission critical Windows servers (along with Linux and Solaris) and none of them have high failure rates. We know that skill and process matter more than vendor and technology because every OS and every application from every vendor requires security diligence, regular maintenance, backups, monitoring, etc. I know you don't want to hear this, but any given organization can use 80% Windows or 80% Linux and accomplish the same goals if they possess the necessary skills and well developed processes.

Getting swayed by religious dogma in the OS wars is equally bad to getting swayed by PR (as you put it). For business decision makers, pragmatism is reality, not a dirty word.

As you've clearly evinced, those who claim to protect the world from FUD are often the most likely to spread FUD of their own.
Posted By Bradley, Southern California : 7:36 PM  

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This blog is about legal issues that matter to business people, and it's geared for nonlawyers and lawyers alike. Roger Parloff is Fortune magazine's senior editor (legal affairs). He practiced law for five years in Manhattan before becoming a full-time journalist. To join in the discussion or suggest topics, please email rparloff@fortunemail.com.

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Most stock quote data provided by BATS. Market indices are shown in real time, except for the DJIA, which is delayed by two minutes. All times are ET. Disclaimer.

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