Linked by Thom Holwerda on Thu 2nd Nov 2006 22:05 UTC, submitted by anonymous
Novell and Ximian At a press conference in San Francisco, Microsoft CEO Steve Ballmer is expected to announce a new partnership between Microsoft and Novell. The unprecedented deal will have Microsoft offering a degree of sales support for Novell's SUSE Linux while both companies work towards better interoperability between their respective operating systems. As part of the agreement, Microsoft also promises not to wield its patent portfolio against SUSE Linux. More here. You can follow the live webcast announcement, by Steve Ballmer, here. Update: Novell has put up a detailed FAQ about this deal.
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RE[3]: is
by h times nue equals e on Fri 3rd Nov 2006 15:44 UTC in reply to "RE[2]: is"
h times nue equals e
Member since:
2006-01-21

This clause certainly raises questions whether GPL v2 is actually legal. If a GPL code is distributed and breaks a patent than it has to either be replaced with code that breaks the patent, or then it is up to the patent holder rather than the GPL distributor (and license) who and how they license the patent to.
Beside the nitpick, that you probably lost a "not" somewhere between "that" and "breaks", I don't think, that this language is per se illegal. (IANAL, though).

The GPL assumes, that you (as the author of the code / derivative work) are in the legal position to distribute said code in the first place. If you violate patents (and life in countries / jurisdrictions, that allow the patent holders to pursue you), then this assumption clearly does no longer apply. You would have to license the technology regardless of the license you plan to use for distribution. The GPL imposes only additional restrictions. Furthermore, it is more difficult (sometimes even impossible) to code around patent issues than to mitigate existing copyright issues (e.g. implement the same idea with a complete different implementation)

If I understand the intend of this clause correctly, the key point is to prevent people from watering down the (copyright based) freedoms granted by the GPL by patent related means (e.g. the code itself is covered by the GPL, but you are only allowed to use / modify / distribute it, if you ADDITIONALLY license the idea behind the code via patent xyz from me )

Regards

Reply Parent Score: 1

RE[4]: is
by drdoug on Fri 3rd Nov 2006 16:29 in reply to "RE[3]: is"
drdoug Member since:
2006-04-30

If you violate patents (and life in countries / jurisdrictions, that allow the patent holders to pursue you), then this assumption clearly does no longer apply. You would have to license the technology regardless of the license you plan to use for distribution.

The problem is that the patent could override the license. If the code has already been released, then it is up to the each distributor to comply/license to the patent. Eithen though the license tries to make it a collective licensing of a patent. It patent holder who dictates the terms on how the patent is licensed. It would be difficult to argue if say Microsoft sued Novell, that Novell should pay the license fee for every distributer breaking the patent.

One thing that Microsoft has made very clear from their language is that it wants similar agreements from other distributers. It looks like they think they have a good hand of cards to play, and they are now placing bets.

Reply Parent Score: 2

RE[5]: is
by h times nue equals e on Fri 3rd Nov 2006 17:05 in reply to "RE[3]: is"
h times nue equals e Member since:
2006-01-21

Again, IANAL, so please correct me if I'm wrong on this, but for me the situation looks like this:

If Novel distributes their (= they are the sole holder of copyright) original work under the GPL
AND violates a patent, then it should (IMHO) be immanent, that they must get a patent license, preferably before they release the software. If they fail to get a license from the patent holder, that is compatible with the GPL (e.g. allows to obtain a royality free license for all derivative works), then the software does not qualify for the GPL. If they still choose to distribute the software under the GPL although they are fully aware, that the authors of derivative works may be hindered by the patent holder to enjoy their right to create and distribute consequent modified versions, then I guess that the project will loose its appeal to FOSS developers pretty soon. Whether such (hypothetical) behaviour on behalf of any party (incl. Novell) is legal or not, I'm not sure about. But for me, it is clear that the license is not the one to blame here.

I assume that aboves example is the situation you had in mind. Because, if otherwise Novell joins an existing, GPL-only licensed project and creates derivative works + adds patent encumbered technologies with the same restricitve patent licenense from above, it would violate the terms of the license, that granted the access to the base of their derivative works. Novell would loose the right to modify AND distribute their works on base of the GPL.

I agree, that the orthogonality of patents and copyright can lead to situations, where the license itself is ridiculed. Still, I do not see where the GPL is legally questioned with respect to this.

(From the flawed-Car-analogies department; If I buy a car in my country, then I have several rights granted by consumer protection laws including warranty times, not manipualted the kilometer counter, .... , and the full transfer of ownership, e.g. I can sell the car myself, if I have fully paid the price. If the vendor chooses to sell cars he has no right to sell, for example because they are stolen, then this does not render my consumer rights invalid. Ok, this analogy uses contract law, and not licenses, but I hope you get my point)

Regards

Reply Parent Score: 1

RE[6]: is
by Tron on Sat 4th Nov 2006 05:58 in reply to "RE[5]: is"
Tron Member since:
2005-07-07

Just to sum up because I think this is an important point that few people have mentioned:

Novell just bought patent indemnification for everyone.

Novell is legally required to release Linux the under the GPL or a compatible license. According to section 7 of the GPL, any imposed licenses or restrictions (patents included) are required to be GPL compatible. If Microsoft grants a license (to anyone) to use a patent in GPL code, that license MUST be GPL compatible, and therefore applies globally. All users/distributors of the code should immediately have indemnification for that patent.

Lawyers are no dummies and this seems pretty clear-cut, so here's my take on the whole thing: Microsoft is getting some money from Novell and will attempt to get others to buy into the racket even though it is unnecessary; Novell is banking on the reputation of being a Microsoft partner and being indemnified(even though everyone else is); And everyone gets to use Mono and SMB, reguardless of distribution, without fear of lawyers. A win-win-win situation.

Reply Parent Score: 1