Linked by Thom Holwerda on Sat 3rd Feb 2007 16:43 UTC, submitted by mwtomlinson
Novell and Ximian The Free Software Foundation is reviewing Novell's right to sell new versions of Linux operating system software after the open-source community criticized Novell for teaming up with Microsoft. "The community of people wants to do anything they can to interfere with this deal and all deals like it. They have every reason to be deeply concerned that this is the beginning of a significant patent aggression by Microsoft," Eben Moglen, the Foundation's general counsel, said on Friday. Update: The FSF claims this is being hyped.
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RE[3]: OK
by elsewhere on Sat 3rd Feb 2007 19:43 UTC in reply to "RE[2]: OK"
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In signing the deal, Novell basically admitted to liability. They were covered from that as part of the deal, but since Novell ships the same code as every other Linux distributer, that calls into question the liability of all of them. It gives Microsoft (or a proxy agent) a stronger case for going against RedHat, who is not covered by the deal.

No, it doesn't work that way. Novell ships their own proprietary, closed components with their enterprise linux distributions, and the agreement did not specify particular components. This is not unusual, because companies engaged in patent-cross licensing will rarely specify particular products or technologies, at least publically, because they are hesitant to actually admit the infringement.

But aside from that, even if Novell signed an agreement that said we're licensing patent no. 123456 from Microsoft to cover it's use in kernel process xyz, Microsoft would still have to prove the infringement if they chose to pursue any other distributors of the linux kernel. The fact that Novell licensed the technology would have no bearing. In fact, even the US courts have conceded that licensing a patent doesn't imply acceptance of that patent's relevance nor can the patent agreement necessarily prevent the licensee's right to dispute the patent anyways.

It should be noted that Moglen has his JD from Yale and is a professor of law at Columbia. He has strong beliefs about the freedom of software, but he's better-qualified to talk about the legal ramifications of the Novell-Microsoft deal than any of us posters on this forum!

And when push came to shove, after having NDA-access to the actual documentation, he couldn't find anything that was actually wrong with the agreement. He was looking for something that specified patent coverage for GPL'd products that he could point to, and he couldn't find it. Besides, Novell offered enterprise customers legal indemnity for linux software from intellectual property disputes long before any agreement with Microsoft was reached.

So rather than admit that the agreement was actually legally meaningless in terms of being a threat to the integrity of GPL software, they decided to call this a loophole because of the perceived threat and it now becomes the focal point for advancing the v3 agenda. They've also admitted the v3 simply serves to solidify patent provisions that were already implied in v2, so they're not actually accomplishing much beyond a little clarity.

Given the ambiguous terms of the Novell agreement, I cannot see a conceivable way that they can restrict Novell from distributing GPL protected software without impacting any other company that has non-specific trade agreements with Microsoft (or similar), and the industry is rife with those.

At this point, they haven't even been able to illustrate how they're going to add this provision, which will inevitably have a significant impact on how companies will have to consider v3 licensing, yet the license is now a month or two away from release. Will be interesting to see.

Reply Parent Score: 5