Home > Novell and Ximian > Microsoft, Novell Spar Over Linux AgreementMicrosoft, Novell Spar Over Linux Agreement Eugenia Loli 2006-11-21 Novell and Ximian 54 CommentsNovell’s CEO on Monday issued a letter to the open-source community disputing Microsoft’s contention that Linux infringes on Microsoft patents. About The Author Eugenia LoliEx-programmer, ex-editor in chief at OSNews.com, now a visual artist/filmmaker.Follow me on Twitter @EugeniaLoli 54 Comments 2006-11-21 6:06 pm tophfisherHardly… Sensationalize much? 2006-11-21 6:14 pm Dark_Knighthttp://www.novell.com/linux/microsoft/community_open_letter.html 2006-11-21 6:28 pm Marcellushttp://www.microsoft.com/presspass/press/2006/nov06/11-20Statement…. 2006-11-21 6:21 pm merkothFTA: “Microsoft mainly wants to sell licenses…and if (Microsoft leaders) can find a way to do that and sit in the Linux environment, that’s good for them,” Sunstein said. “Fundamentally, they’re not interested in patent litigation. Fundamentally, they’re interested in selling licenses.”I don’t get it: How is Microsoft going to sell Vista licences by “sitting in the Linux environment”? Spreading fear, uncertainty and doubt? Telling us “If you don’t buy from Novell we might sue you”?I’m afraid it won’t work guys. I’m not giving up my freedom of choice just for Microsoft. I moved away from Windows to avoid this kind of bullshit, this is my house and I’m not leaving. 2006-11-21 6:24 pm AlmindorThis is not about you or your house.It’s about the CEOs and companies. When these idio.. I mean CEOs will hear about it first they are going to do is to change either to Novell or Windows to avoid being sued over. Of course.. unless they are smart enough to ignore it or live in EU. 2006-11-21 9:54 pm deb2006Well, that’s indeed very easy. Microsoft wants to sell Vista in the first place – sure. But here it comes: They know that quite a few of their customers also run Linux. What can they do? Right, “support” an enterprise Linux and make it run in their virtual environment. Imagine: Novell running inside Microsoft’s virtual environment – what a triumph for Ballmer.Well, in the end they’ll certainly eat Novell for breakfast and make it a Microsoft division. But that’ll come later … 2006-11-22 7:42 am kaiwaiI don’t get it: How is Microsoft going to sell Vista licences by “sitting in the Linux environment”? Obviously you have some major comprehension problems – let me explain to all you kids out there.Microsoft is a business; the sole and core focus of a business is to make money for the owners, the owners being the shareholders of Microsoft – this money is made by investing shareholder funds into R&D and product development, and then profits are made via sales of those said products.There is a limit to how much money they can make off the R&D in their own products, so what Microsoft intends to do is licence this R&D to other companies; R&D that includes such things as the WMA/WMV CODECs, which TurboLinux already has licenced, as one example.How does Microsoft benefit by ‘sitting in the Linux environment’ – easy, they start stirring the pot of fear, uncertaintity and doubt; they claim that to be ‘extra safe, make sure your vendor has an agreement with us’ – so even if customers were to go to Linux, Microsoft would still benefit long term via royalties paid on IP licenced to companies.This is how IBM generates large amounts of their revenue; they have a very large R&D and licence their technology out to companies; AMD licenced strained silicon for example, copper based components within CPU’s are licenced off IBM as another example of this.Microsoft needs revenue streams from all corners, they need to squeeze every dollar out of their R&D to justify the $7billion they spend each year, they need to ensure that the patented technologies are actually getting a fair return on, either by ensuring they’re properly utilised with in their products ot if used by third parties, appropriately licenced. 2006-11-21 6:24 pm B. JanssenOh boy, that’s so much fun. Like i wrote earlier, Novell had probably good cause to sign this deal, but they also totally underestimated the role of the tech-savvy multiplier that is committed to OSS at least and FOSS at best. That MS now uses this agreement to further its FUD campaign (i’m with Groklaw here) against GNU/Linux-based OS should not surprise anybody but makes damage control for Novell so much harder. This will be really funny to watch. 2006-11-21 6:29 pm Marcellushttp://www.microsoft.com/presspass/press/2006/nov06/11-20Statement….Since both sides had said stuff prior to posting this newsitem, I think it’s only fair to include MS response to it all as well. 2006-11-21 6:33 pm unaperssonIt looks like Microsoft are sliding into the same area as those IP shell companies that do nothing but sue others. They’re trying to get the competitive benefit by hinting at IP infringements without actually laying their cards on the table.In fact if they’re talking about patents then they don’t really have a leg to stand on in Europe and all they doing is illustrating what a slippery slope allowing software patents is. 2006-11-21 6:48 pm FinalzoneIn poker world, it is called bluff. 2006-11-21 6:44 pm markobThis won’t end good, if you play with fire you get burned and doing such business is too risky, as we all know Microsoft’s unfair practices in the past. What were Novell’s people smoking when they signed an agreement I don’t know, but it must’ve been good. 2006-11-21 9:21 pm r_a_tripThey weren’t smoking, but they whiffed the smell of Microsoft’s millions and they water mouthed at the ability to use FUD stickers to give their Novell distro a sales boost.They just didn’t realize that MS will always stab a “partner” in the back and they didn’t believe the community would be true to their ideals. On both counts they lost a lot of blood.Novell has infected itself with MS leprosy and short of a miraculous turn around they are now a community outcast. For all the whining that Novell does over damaging statements, they themselves went for their jugular the moment they inked the deal. 2006-11-21 7:06 pm buttersNovell wanted interoperability, Microsoft wanted to open up an IP-sharing relationship with free software. Something for everybody, right? But Microsoft gets more out of the deal. Interop benefits them nearly as much as it benefits Novell. Plus, the Linux community has been pretty successful at achieving interop without Microsoft’s help or cooperation.I would like to think (at this point) that Novell underestimated the scope of the inevitable negative reaction to the patent covenant. They knew the far left would cry foul, but they didn’t realize how many “left-leaning moderates,” which include most of the Linux journalists, would reject the deal.Microsoft really wanted this deal. It allows them to play their patent portfolio on free software vendors just as they do with their proprietary cousins. Until now, free software did not negotiate with IP terrorists. Now, apparently, we do.I’ll chalk this up to good intentions on the part of a corporate culture still very much in transition and a new CEO with no previous OSS experience. Anyone with a clue knows the following:1) Linux distributions violate Microsoft’s patents,2) Windows products violate patents held by various corporations with products related to Linux, and3) It is not in any party’s best interests to make a fuss over any of this.Of course Microsoft is willing to agree not to sue Novell’s customers and vice versa. That’s the nature of the business. But to explicitly make an agreement sells out the rest of the Linux community because Novell doesn’t own the exclusive right to distribute the Linux software stack.The fact of the matter is the the GPL was intended to prevent this sort of deal, but Microsoft is moving the discussion out of the realm of IP law. It’s just a contract between two corporations promising not to sue based on certain kinds of claims. There’s no way for a copyright license to prevent this, no matter how much Eben Moglen wishes this was the case. That’s half of the problem with the GPLv3: it goes way beyond the role of a copyright license and becomes something more like a EULA.In the short term, there’s nothing to worry about. When Microsoft agrees not to sue Novell’s customers, and publicly states that they want to agree not to sue the customers of other Linux vendors, too, they are really saying that they don’t want to sue any Linux users. Like I said, it’s not really in their best interest (most Linux users are also Windows users).But in the long term, the “IP bridge” is dangerous because it establishes a precedent for other IP holders to attack commercial Linux users. Microsoft is like a walk on the beach compared to IP threats from bankrupt sharks like SCO, NTP, etc. 2006-11-21 7:51 pm b3timmons“The fact of the matter is the the GPL was intended to prevent this sort of deal, but Microsoft is moving the discussion out of the realm of IP law. It’s just a contract between two corporations promising not to sue based on certain kinds of claims. There’s no way for a copyright license to prevent this, no matter how much Eben Moglen wishes this was the case. That’s half of the problem with the GPLv3: it goes way beyond the role of a copyright license and becomes something more like a EULA.”Some of Moglen’s latest comments are herehttp://www.theregister.co.uk/2006/11/20/eben_moglen_on_microsoft_no…(However, beware of the reporter’s comments–he makes some basic mistakes.)From whose POV, besides the obvious suspects, is the GPLv3 a problem? If a year from now, I want the best protection I can get from a license for my free software program, what else would I choose?(For those who do not know: it’s either a EULA or not a EULA. No GPL of any version can ever be a EULA since, according to Moglen*, mere use of any program covered by the GPL will never entail the acceptance of the GPL, in contrast to what a EULA requires. That is, GPL is just a license.)(*) http://www.gnu.org/philosophy/enforcing-gpl.htmlEdited 2006-11-21 20:06 2006-11-22 11:00 am Havin_itWell, no: you still must accept the terms to use it, it’s just that there are no terms restricting how you use it (in the ‘end-user’ sense), which is where it differs from the average MS EULA*.*Edit: Yes, it differs in many other ways, but I was limiting my scope to that of the parent’s comment Edited 2006-11-22 11:01 2006-11-22 11:49 am h times nue equals eStraight from the General-Public-License Preamble Department:Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.[Edit: Fixed type in first sentence and added source :http://www.gnu.org/licenses/gpl.html](Disclaimer: IANAL, and I’m quite happy about that)Ok, first of all: The GPL is a license and not a contract. I do not have to agree explicitly to a license, which is a different situation to a contract, where all involved parties must have a meeting of minds and have to agree on the terms of said contract.Sadly, more and more Software has End User License Agreements, that resemble contracts ( “Yes, I agree” ) more than licenses. Given this practice to blur the line between End User Contracts and End User Licenses, it is sometimes difficult to distinguish between this two forms of granting permissions in the software area, although – if my memory serves me right – contract law and license law can differ substantially. Perhaps some legally more knowledgeable folks can fill my knowledge gaps here, thank you.The act of copying and distributing modified versions of a creative work covered only by the GPL (from anyother person not identical with the sole copyright holder) is – please feel free to correct me on this – a sufficiant agreement on the terms of the GPL.If Service technician A installs a (slightly) modified version of program X, which is covered by the GPL on the workstation of human being B, B is not restricted in using this program in any way, including (again) modfication without distribution, he/she can think of.Compare that to the frequent pop ups of “Yes, I agree (again)” EULA screens after/during updates of properitary apps. As long as the installation of this modified version doesn’t constitute a distribution (e.g. happens in house) the GPL doesn’t get in the way of doing things.I’m not sure whether my comment is only statisfying my need to nitpick, but the fact, that you do not have to agree to the license to run/use the program, is IMHO important.RegardsEdited 2006-11-22 12:03 2006-11-22 1:27 pm b3timmons“Well, no: you still must accept the terms to use it, it’s just that there are no terms restricting how you use it (in the ‘end-user’ sense), which is where it differs from the average MS EULA*.”False. Please read the GPL2:“ 5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions areprohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifyingthe Program or works based on it.”That wraps it up, but for entertainment I include a couple of other tidbits.Moglen also says:“This claim is based on a misunderstanding. The license does not require anyone to accept it in order to acquire, install, use, inspect, or even experimentally modify GPL’d software. All of those activities are either forbidden or controlled by proprietary software firms, so they require you to accept a license, including contractual provisions outside the reach of copyright, before you can use their works. The free software movement thinks all those activities are rights, which all users ought to have; we don’t even want to cover those activities by license. Almost everyone who uses GPL’d software from day to day needs no license, and accepts none. The GPL only obliges you if you distribute software made from GPL’d code, and only needs to be accepted when redistribution occurs. And because no one can ever redistribute without a license, we can safely presume that anyone redistributing GPL’d software intended to accept the GPL. After all, the GPL requires each copy of covered software to include the license text, so everyone is fully informed.”And another quote from GPL2:“Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.“ 2006-11-22 1:47 pm Havin_itOkay, me bad :/I expect I thought this because most (all?) of the Sourceforge stuff I’ve installed on Windows has included a click-thru view of the GPL in the installer. I guess the difference being that the “Next” button just said “Yeah whatever, onward please” instead of “I agree/submit/here’s my firstborn child”. Guess I pay as much attention to the buttons as I do the license /licks wounded pride 2006-11-21 7:06 pm JeffSHas anyone noticed how Steve Ballmer looks like Uncle Fester on the Addams Family?Uncle Fester, eerrr, Stupidhead Ballmer, should shut is FUD spreading pie-hole.He’s opening himself and his company up to RICO charges:http://en.wikipedia.org/wiki/Racketeer_Influenced_and_Corrupt_Organ…He’s opening himself up to more anti-trust charges …He’s opening himself up to patent jihad from competitors (who use Linux as part of their business strategy) …And he’s opening himself up to GPL counter suits (Moglen and the FSF won’t take any of MS’s nonsense sitting down). 2006-11-21 7:28 pm berzerkoJust because Novell signed a deal w/ MS, it does not affect all of free software. I really don’t see how anything is different now, than before the Novell/MS agreement. It was GPL before and free w/o any Microsoft “IP” worries, it should still be the same. Novell cannot speak for all of the coders around the globe who write most of the software that Novell then simply (re)distributes. They are just another linux distro. 2006-11-21 7:44 pm stephanemFirst it was with Lindows and now with Novell.Do they not care about perhaps using that money to pay for healthcare for inner city kids?. Hope Novell and Lindows choke that MS money. 2006-11-21 7:44 pm burtisSleep with the devil… 2006-11-21 7:51 pm theGrumpof course novell knew msft was going to do this, the ‘open letter’ is just pr fluffBrowser: ELinks/0.11.1-1-debian (textmode; Linux 2.6.17-2-686 i686; 84×32-3) 2006-11-21 9:29 pm WarpKatI think the title says it all… 2006-11-21 9:43 pm jakesdadThe FOSS group are a finicky bunch… So I dont think it is. All some one has to do is donate code as GPL and they forget everything. Just like they forgot that SUSE was always weird about the GPL… Until Novell gpl’d yast. 2006-11-22 12:02 am IanSVTAll some one has to do is donate code as GPL and they forget everything.Which is a point in the open letter that I think should have been bolded. Novell doesn’t just use open source software. They actually help the open source community through a variety of means. People seem to forget or ignore that. Nobody wants to hear that because it doesn’t ring with as much sensationalism as Novell screwing over open source does.Novell’s biggest blunder in all this up to this point is their lack of PR. They went at it from the business stand point and ignored the community aspect. There might be damage to the community/gpl/linux down the road from all of this, but none of that is certain and calling for such at this point in the game is jumping the gun.Novell sees a clear seperation of community and business. That’s how they went about this deal. Many people do not. I, myself, was upset at the deal. But I’ve backed off from that stance over the past couple of weeks. I still think they screwed up from a PR/Marketing standpoint from the reaction of the OSS community, but that’s a far as I can go based on facts alone. 2006-11-22 12:52 am b3timmons“All some one has to do is donate code as GPL and they forget everything.Which is a point in the open letter that I think should have been bolded. Novell doesn’t just use open source software. They actually help the open source community through a variety of means. People seem to forget or ignore that. Nobody wants to hear that because it doesn’t ring with as much sensationalism as Novell screwing over open source does.”What if Red Hat had pulled the deal? Red Hat helps the community through a variety of means. Does anyone think the reactions would have been any different? I don’t think so. Novell was failing while Red Hat was succeeding. That casts doubt on Novell’s business model; yet somehow they are supposed to get a free pass to prop up their business model by circumventing the GPL, something many big companies could have done over many years and yet did not.Tivo also circumvented, are villified and have earned a coinage.Generally, companies finding loopholes strikes me as way to get around competing, an impression eminently consistent with the record of Novell’s new “partner”. 2006-11-22 2:54 am IanSVTThat casts doubt on Novell’s business model; yet somehow they are supposed to get a free pass to prop up their business model by circumventing the GPL, something many big companies could have done over many years and yet did not. I wasn’t aware they circumvented the GPL. If they did indeed then I’m not understanding what you mean by circumvent. Why don’t they get ripped for having proprietary products such as eDirectory, GroupWise, and ZenWorks which all run on Linux but are closed source? The installers for GroupWise 7 are rpm based, an open source package management tool. But GroupWise itself is NOT open source. SLED is based on open source packages, but also incorporates closed source packages such as some macromedia crap, the groupwise client, and some adobe bits I believe. There weren’t a lot of people who cared about that. But when Microsoft gets involved, things change. I can see why emotions get involved then, but I still don’t see from a logical standpoint, why things are different in this case.I might be over simplifying things here, but until Novell takes GPL code, and makes it closed source, they aren’t going against the idea of the GPL. If they have stepped over the line in legal terms, where is the punishment or legal action? Is the GPL a paper tiger or is Novell really not circumventing the GPL as you say?Now you might have something if you said that Novell violated the spirit of the GPL, and I still blame that on their PR/Marketing and management in general. Novell has products that Red Hat can’t come close to competing against, but continue to drop the ball marketing these products. They also dropped this supposed bomb shell, and then went quiet for more than a week. I think that damaged them.Time will tell how this all shakes out, but I’m not seeing what they did wrong overall.Edited 2006-11-22 02:56 2006-11-22 3:43 am b3timmons“I wasn’t aware they circumvented the GPL. If they did indeed then I’m not understanding what you mean by circumvent. Why don’t they get ripped for having proprietary products such as eDirectory, GroupWise, and ZenWorks which all run on Linux but are closed source? The installers for GroupWise 7 are rpm based, an open source package management tool. But GroupWise itself is NOT open source. SLED is based on open source packages, but also incorporates closed source packages such as some macromedia crap, the groupwise client, and some adobe bits I believe. There weren’t a lot of people who cared about that. But when Microsoft gets involved, things change. I can see why emotions get involved then, but I still don’t see from a logical standpoint, why things are different in this case. ”The reason why no one cares about Novell’s proprietary stuff is that it has absolutely nothing to do with the GPL. Everything you mention are user space products whose license compatibility with the GPL kernel is irrelevant. Hence, no one cares.OTOH, is it possible that the creators of a license are in a position to know when the license they created is circumvented? I do not think that is much of a stretch. The lawyer behind the GPL has repeatedly indicated that the MS/Novell deal is a circumvention.The Samba project, one of the central projects in the MS/Novell interoperability effort, has already requested that Novell rescind the deal because of the circumvention.You can find out about more about all of these things just by googling. Note that the people I have referred to are not random people–they are leaders who have a reputation and they put it on the line when they observe that Novell has circumvented.I could bring up further damning things about Novell right now about these matters, but this is enough for now. 2006-11-22 4:13 am IanSVTThe reason why no one cares about Novell’s proprietary stuff is that it has absolutely nothing to do with the GPL. Everything you mention are user space products whose license compatibility with the GPL kernel is irrelevant. Hence, no one cares.It does have something to do with GPL software. It runs on GPL based software, built with GPL software. I can’t, however, run GroupWise on gentoo, slackware, or ubuntu. In pure legal terms, it does not have anything to do with the GPL, but that’s not what my point was about. It had to do with the spirit of the GPL or open source software in general.But on the flip side, I don’t see how this deal on its face(assuming you believe Novell), turns GPL code into closed source proprietary code.The lawyer behind the GPL has repeatedly indicated that the MS/Novell deal is a circumvention. I have read that, but I haven’t seen any specifics. Has the lawyer made any comments on specific problems? If they have circumvented the GPL, where is the exact parts that have been circumvented and where is the legal action?Samba has come out against the deal. That’s their right. However, how many people have not come out against this deal? Linus himself doesn’t seem to be worried about any of this.Finally, do you equate circumventing the GPL with violating the GPL? That might clear some things up for me. 2006-11-22 4:48 am b3timmons“It does have something to do with GPL software. It runs on GPL based software, built with GPL software. I can’t, however, run GroupWise on gentoo, slackware, or ubuntu. In pure legal terms, it does not have anything to do with the GPL, but that’s not what my point was about. It had to do with the spirit of the GPL or open source software in general. ”OK, I see the confusion. We can talk about the spirit or letter of the law, and in this case, a license. Your point is outside the scope of what is normally meant by circumvention in this discussion, as googling these terms will show you. I do not mean to belittle your point–it’s just not on the table here at all.“I have read that, but I haven’t seen any specifics. Has the lawyer made any comments on specific problems? If they have circumvented the GPL, where is the exact parts that have been circumvented and where is the legal action?”Section 7 of the GPLv2 has been circumvented. The legal action is still being contemplated, and action will happen for sure. Whether it is “direct” or “indirect” is the question and we will have to see. Looking up Moglen in the news should explain everything.Samba has come out against the deal. That’s their right. However, how many people have not come out against this deal? Linus himself doesn’t seem to be worried about any of this. I have trouble determining whether people are not worried unless they say something. However, developer opinion has been so quickly aligned against Novell, that a bank has already downgraded NOVL stock, stating this very reason:http://boycottnovell.com/?p=32andhttp://blogs.barrons.com/techtraderdaily/2006/11/20/microsoft-credi…(Note that the bank simultaneously upgraded MSFT, so that suggests what this means for Microsoft vis a vis FOSS.)“Finally, do you equate circumventing the GPL with violating the GPL? That might clear some things up for me.”No, violating is illegal (violating the “letter”), whereas circumventing is unethical (violating the “spirit”).Edited 2006-11-22 04:57 2006-11-22 2:06 pm IanSVTSection 7 of the GPLv2 has been circumvented. The legal action is still being contemplated, and action will happen for sure. Whether it is “direct” or “indirect” is the question and we will have to see. Looking up Moglen in the news should explain everything. According to Novell’s open source FAQ regarding the deal:“Our agreement with Microsoft is focused on our customers, and does not include a patent license or covenant not to sue from Microsoft to Novell (or, for that matter, from Novell to Microsoft). Novell’s customers receive a covenant not to sue directly from Microsoft.”You say circumventing is unethical, and that’s a matter of opinion rather than fact. Until action is taken against Novell and are found guilty, they are still in the right. And based on that, my earlier point you didn’t think had anything to do with this discussion is indeed germane to the topic at hand. Novell, along with plenty of other companies, release distributions with closed source modules which are in violation of the very spirit of the GPL but not in violation to the legal letter of the GPL. People still don’t seem to care about that. Again, I suggest the reason behind this uproar is that Microsoft’s name is tied to it more than anything else at this point.However, developer opinion has been so quickly aligned against Novell, that a bank has already downgraded NOVL stockHow does developer opinion equate to Novell stock losses? How many radical stock trade price upturns sustain in the market? It’s rare. Moreover, developer opinion on this deal is totally non inclusive at best. I agree, you can’t assume things without hearing from the developers, but you can’t assume they care either. Passion against something generally begets a response while apathy(not caring) generally results in non action. Again, samba is pissed about it. A few big names taking one side or another does not equal a majority. Samba is not the only open source project involved.It seems to me that the majority of people spewing vitriol in Novell’s direction from the community are the users who have an overly utopian view of Linux and open source in general and think that this deal dirties the open source waters when in reality the use of closed source products on the Linux platform are in violation of the spirit of the GPL and that code should be open.So again, are we talking about legal violation or unethical actions? You have said it’s unethical. I’m saying that unethical actions have been going on in open source for some time and nobody seemed to care until Microsoft got involved. Samba itself could be considered unethical from a general standpoint(rather than the GPL) because they went and reversed engineered a closed protocol. It’s not in violation of anything legally, but it might be in ethical violation.To echo the poster elsewhere, this was a business deal, nothing more. If it helps the open source cause then that is ultimately a business plus and therefore a good thing in Novell’s eyes. This might turn on Novell and might screw the open source community down the road. But until that happens, how can we assume that it will?Edited 2006-11-22 14:12 2006-11-22 3:29 pm b3timmons“You say circumventing is unethical, and that’s a matter of opinion rather than fact. Until action is taken against Novell and are found guilty, they are still in the right.”It may be a matter of opinion–that’s the nature of ethics, but it does not take a rocket scientist to know that ethics matters to people.“They are still in the right”? You mean they are still innocent–you know, innocent until proven guilty. Of course, we agree. That says nothing at all about ethics of course. You may have meant they are still acting ethically, but you would have to support that claim.“Novell, along with plenty of other companies, release distributions with closed source modules which are in violation of the very spirit of the GPL but not in violation to the legal letter of the GPL. The use of “spirit” is somewhat a matter of convention and typical use. Your use is not typical. That does not make it bad in general, but it does make it much less useful in the discussions of this deal. You are drawing a distinction that happens to support your opinion better. The other distinction is more specific and hence more relevant to the details of the deal. Neither you nor are I are likely to know the spirit of a software license better than the people who create the license. If you disagree, then we should agree to disagree.If you agree, then just consider the lawyer behind the GPL. He has already declared that they tried to circumvent the license and that he will adjust GPLv3 to prevent this kind of abuse. If he does not know what the spirit is, I am afraid I cannot help you any further on this point.“You have said it’s unethical. I’m saying that unethical actions have been going on in open source for some time and nobody seemed to care until Microsoft got involved.”False. Many controversies alleging unethical actions against free software have occured over the years and people need to learn more about them. People cared. Microsoft was involved in some of them. What makes this case particularly bad was that up until recently Novell represented itself as a company with a community, and then they do this deal. Novell broke the trust that many people had that they would not try to get out of their obligations in following software licenses that are central to the free software world. Notice that no one particularly is coming out against Microsoft because Microsoft never represented itself as anything but an enemy of free software–no one was surprised. Big difference.Anyway, regardless of your position, I recommend learning more about the various issues involved as I will continue to do myself. 2006-11-22 3:42 pm IanSVTI still think Novell’s biggest screw up in this whole affair at this stage of the game was from a marketing/PR stand point.I think what this boils down to is that we don’t see eye to eye on a few key issues. Fair enough though. I’m reserving my judgment to see how this all shakes out. I might end up agreeing with you when all is said and done, but until then, I’m not jumping the gun.I enjoyed the back and forth between us though. Makes for more interesting reading/writing. 2006-11-22 3:44 pm h times nue equals eLet’s compare:Number of sections in the GPL that restrictsagglomeration with pure properitary software : 0Number of sections in the GPL that restrict the introduction of patent deals : 1While the FSF has stated in their FAQ, that – according to their philosophy – the useage of properitary software is unethical, as long properitary parts are not derivative works of GPL covered ones, it is not their buisness.The MS – Novell deal dodges the whole section 7 more or less because the two partners of this deal do not indemnify each other, but their customers. I have little experience in this matters beyound reading press releases, mind you, but at least to me, this whole construction seems rather unusual.We can have a long debate what behabiour is less ethical, but I hope you understand, that I think the former is less violating the spirit of the license, since it is only tangential to free software projects and is explicitly mentioned as legal in the FAQ, whereas the latter has this certain “We were smarter than you and found a hole” smell following closely.As a side notice, most FOSS developers I have talked to about this matter in the last weeks, pointed out, that their main points of concern are:– The Fear, Uncertainy and Doubt introduced from behalf of MS by staying as vague as possible about what parts of their IP portfolio are allegedly infringed by which Free / Open Source projects specifically.– The obvious disagreements of the partners of the deal about the current legal status of Linux– The precedence of introducing the threat of software patents as an competative tool in the buisness of distributing FOSS software (which is still a large part even of mixed source distributions like the comercial SuSE ones). Comercial Linux distributions are for a long time a part of the linux spectrum, this deal is a novelity.– The two faced strategy of MS ( damage controll dances like  and consequently  and the “you owe us money” talk from Mr. Ballmer). The spreading of unaccurate information (the “can never make money of open source” talk from you-know-who, for example) and the track record of microsoft (halloween papers, “viral”, “cancer”, etc. ) hasn’t helped either.http://blogs.msdn.com/jasonmatusow/archive/2006/11/11/your-input-re…http://blogs.msdn.com/jasonmatusow/archive/2006/11/15/thank-you-for… 2006-11-22 4:43 pm b3timmons“While the FSF has stated in their FAQ, that – according to their philosophy – the useage of properitary software is unethical,”Just a minor point: I gather that most often the FSF just says that “Proprietary software is unethical.”Most of all, they often stay general to encourage people to just raise questions for themselves, which, after all, is what learning ethics requires. They have described situations where using or producing proprietary software is justified, such as when using a proprietary program to better understand how to write a free replacement or writing a proprietary program to earn enough so that you can write free software. The production question is the big one. Regardless of anyone’s viewpoint on proprietary software, encouraging people to ask questions is always good.There are so many possible business models around software; I fail to see why proprietary software would be missed at all, especially considering the likes of Microsoft. Thanks for your information and links. 2006-11-22 5:19 pm h times nue equals eThanks for correcting me, you are right. I really appreciate your contributions, especially if they help me to improve and refine my arguments 🙂Regards 2006-11-22 4:57 am elsewhereTime will tell how this all shakes out, but I’m not seeing what they did wrong overall.I’m beginning to think the worst thing they did was provide fuel for the FSF faction to use as FUD in their drive to the GPL v3.Novell did nothing in violation of the GPL. The agreement did not refer to specific GPL products. The patent covenant did not refer to GPL products. Microsoft, despite all their blustering, has not named an infringing GPL product. Nor did they circumvent the GPL, because there was no need to, since the agreement, covenant and everything else related to this fiasco has nothing to do with the GPL.The FSF decries this agreement, at first because they were sure it violated the GPL and then when Moglen couldn’t actually find a way that it did, they decried it for breaking the “spirit” of the GPL (shades of Tivo) and vowed that v3 would be re-written to prevent this. Despite the GPL having nothing to do with this deal. But that doesn’t surprise me. I fully suspect that if the GOP had managed to win the recent election in the US, v3 probably would have had a clause added to address that as well. I can’t wait to see how much further v3 is going to reach in controlling freedom, it’s simply stunning.Novell will inevitably be the loser in this agreement. Everybody from Microsoft to Novell’s competitors to the FSF are using selective interpretations of this agreement to accelerate their own agendas. This despite the fact that nobody can point to anything concretely wrong that Novell did without resorting to soliloquies about freedom and philosophy.No doubt a couple of weeks from now, some other hapless organization will do something to annoy the community, so their venom will quickly transition to a new target. This is hardly the first time it’s happened, you can look at Linspire/Freespire, Kororaa, Mepis, Canonical et al. You’re not really an established player in the linux until you’ve done something to antagonize some portion of the community blogosphere. Red Hat took some flub over the JBoss acquisition, and Sun somehow became the champion of FOSS when they GPL’d Java. There isn’t always rhyme or reason, and memories are selective and short-term.The true lightning rod with Novell was likely the fact that the partner company was Microsoft. No other company is as universally despised by the community, so any agreement is likely to be met with disdain regardless of the substance. I would characterize Novell as being naive if they truly believe they can come out ahead in any sort of a partnership with Microsoft, but again, that has nothing to do with linux. That’s just common sense.What it ultimately boils down to is the fact that business is business, and community is community. Some people hold the belief that a mutually beneficial middle-ground can be reached between these two, and despite Novell’s flubs as of late, I honestly believe them to be in this camp. As are organizations like Red Hat, IBM, HP. Or the kernel devs, for that matter.Others instead would choose to drive wedges in a vain attempt to further their own agendas. These are the ones to be wary of, because they’ll tell you they’re looking out for your best interests while they do it, no matter which camp they’re in.I guess Novell’s biggest mistake was ignoring the old axiom about “If a deal seems to good to be true…”. Hindsight is 20/20 of course, but they really should have better anticipated the response from this.Does that clear it up? 2006-11-22 5:18 am b3timmons“they were sure it violated the GPL”They were sure? You cannot support this–just a cheap shot.“Despite the GPL having nothing to do with this deal.”If that is true, why are both corporations going out of their way to explain how they got around the GPL? I guess you know better than Microsoft’s Hilf and many other Microsoft and Novell parties to the deal:“Hilf: We started on the general framework for this three years ago. The deal with Novell started about six months ago. There was just a lot of work we needed to do to understand the GPL side of it and not violate the GPL.”“I can’t wait to see how much further v3 is going to reach in controlling freedom, it’s simply stunning. You have 2006-11-22 5:46 am b3timmons“I can’t wait to see how much further v3 is going to reach in controlling freedom, it’s simply stunning. I asked you what your big gripe about v3 was and you were kind enough to remind me that it was how v3 could end up limiting your freedom of choice among technologies in the market. First of all, you have already dismissed the chances of v3 catching on, so I am confused. Secondly, if it did catch on, the limitation you suggest is nothing better than speculation, especially considering the myriad of operating system choices available under licenses amenable to applications of, for example, Tivoization. You neglect to point out here that there are other freedoms that are strengthened by v3, such as “freedom one” that is violated by Tivoization. That restored freedom is not speculation at all. These anti-v3 issues are just not as simple as you are asserting.Moreover, your regular complaints about “agendas” are one-sided. For example, people are aware of Torvalds being against v2 and chalk it up to a kind of indifference over DRM. What many of these people do not realize is the heavy influence of corporate agendas on many of these issues. For example, the top hits of the following search tell you plenty:torvalds osdl drm companiesAll of us, even Linus Torvalds, have a tough time not being associated with some kind of agenda. That’s not very interesting.What is interesting are the different agendas themselves and how hidden or not they are. Hell yes, the FSF has an agenda and this non-profit organization keeps no secret about it:http://www.gnu.org/philosophy/free-sw.htmlContrast this with the hidden agendas of many corporations with an interest in the GPLv3 process:“If consumers even know there’s a DRM, what it is, and how it works, we’ve already failed” – Disney ExecutiveWhat was that about controlling freedom?Edited 2006-11-22 05:57 2006-11-22 1:32 pm b3timmons“Moreover, your regular complaints about “agendas” are one-sided. For example, people are aware of Torvalds being against v2 and chalk it up to a kind of indifference over DRM. ”Jesus H Christ on a popsicle stick: I meant v3, not v2. 2006-11-22 5:08 pm elsewhereI asked you what your big gripe about v3 was and you were kind enough to remind me that it was how v3 could end up limiting your freedom of choice among technologies in the market.True.First of all, you have already dismissed the chances of v3 catching on, so I am confused. Depends on what “catching on” means. I said that the kernel will not go v3, which means that a v3 GNU toolchain/userland is pretty impotent as a means of enforcing the drm/hardware provisions.Secondly, if it did catch on, the limitation you suggest is nothing better than speculation, especially considering the myriad of operating system choices available under licenses amenable to applications of, for example, Tivoization. You neglect to point out here that there are other freedoms that are strengthened by v3, such as “freedom one” that is violated by Tivoization. That restored freedom is not speculation at all. These anti-v3 issues are just not as simple as you are asserting. Ah, well, here we go again. I don’t see Tivoization as violating my freedom, I see preventing Tivo from enabling a service built around linux as violating my freedom to choose.Once again, the people who actually wrote the linux kernel don’t care about Tivoisation. They see Tivo as living within the terms of the license agreement. They see Tivo’s release of modifications back to the community as part of the reciprocity that has made linux successful where other alternatives driven more by philosophy than pragmatism have failed.The people complaining about Tivoisation are simply not stakeholders in the matter. RMS is free to jump up and down and ensure the license for Hurd prevents Tivoisation, since he owns the copyright for that code. But seriously, we know that’s not really a concern anyways.I’ve said repeatedly that I simply find it arrogant that the “Free” side of the community has taken it upon themselves to hijack the work of the kernel developers and impose their own views and philosophies on how it should be used, licensed and implemented.It’s an attempt to perpetuate the belief that the FSF somehow owns all that is GPL related. It implies that RMS and the FSF somehow determine what is permitted and what is not. Again, as I’ve said before, the GPL is a license backed by copyright law and as such can only be enforced by the holders of the applicable protected works. You can accuse Tivo of circumventing and violating the GPL all you want, but it’s simply irrelevant. As long as the people holding copyright don’t see an issue then there’s no violation.If anything, the “Free” side is violating the spirit under which Linus created the kernel in the first place by refusing to let go of Tivoisation. He’s never lied about what his intents were, he never claimed to be a devout follower of RMS.The FSF does not hold any copyright on code in the linux kernel and so has absolutely say in how the kernel is used. When RMS put the GPL out for public use, he lost the right to control how it is used and the “spirit” in which it is used, it’s as simple as that. The fact that the GNU toolchain was used to build the kernel doesn’t change that either. Hurd failed, Linux succeeded. The FSF should just accept that and get on with things.Moreover, your regular complaints about “agendas” are one-sided. For example, people are aware of Torvalds being against v2 and chalk it up to a kind of indifference over DRM. What many of these people do not realize is the heavy influence of corporate agendas on many of these issues. For example, the top hits of the following search tell you plenty: torvalds osdl drm companiesTorvalds is indifferent over imposing restrictions outside of what he views as the software boundary. Any indifference over DRM is not a personal choice, it’s the principle that it’s not for him to determine. Linux is a tool, not a religion. He does not intend to control or judge how people use linux as long as it’s within the boundaries of the license he uses.As for the corporate influence, well hell yes. Do you think linux would have attained it’s current level of support and capability? Linus saw the ability for the GPL to become a collaborative development mechanism, as opposed to the FSF who view the GPL as a mechanism for eliminating ownership of code. By encouraging contributions and investment from otherwise competitive organizations, from not exerting control over the project and requiring copyright assignment and from attempting to balance the requirements of all parties involved, he managed to use the GPL to create what is arguably the most successful and comprehensive OSS project. The fact that you can use an “F” in front of the OSS as well and call it FOSS is a side-effect, not the intent.Companies have collectively contributed billions into the development of linux, which validates the effectiveness of Linus’ use of the GPL. It’s important to remember as well that many of those same companies contribute heavily to the GNU tools, such as gcc, and are well within their capability to fork (again) if they feel v3 oversteps and imposes an unreasonable restriction on them. I doubt anybody in the commercial side would even blink if that happened. This amusing undertone in all of this is that the FSF relies on corporate backing for relevance since that relevance comes from linux and the GNU tools.What’s distressing is this underlying implication from the FSF side that because Linus does not openly support the four freedoms, he must be against them and nothing more than a corporate slut. This is the type of zealotry that disturbs me, if you’re not “with us” you must be “against us”.Linus’ view of freedom offers the FSF the same ability to co-opt linux for their own use as it does Tivo.Contrast this with the hidden agendas of many corporations with an interest in the GPLv3 process: “If consumers even know there’s a DRM, what it is, and how it works, we’ve already failed” – Disney Executive What was that about controlling freedom?v3 does nothing to prevent this scenario. As I said before, DRM protected products are not going to go away as long as consumers keep purchasing them. That’s the bottom line.I would rather have the choice to use DRM or not if it affects my ability to access content, rather than have DRM restricted from me and limit my content choices. Like I said, I have no problem with the Tivo model but I would have as much of an issue with the FSF trying to restrict Tivo as I would with the MPAA. They’re both trying to deny me freedom and choice because it doesn’t fit their viewpoint of what my freedom and choice needs to be.I believe people have the right to make bad decisions for themselves rather than restricting their choices in order to lead them to make ones that others believe are right.At the end of the day we are simply going to have to agree to disagree on this one. 2006-11-22 5:37 pm b3timmonsTorvalds is indifferent over imposing restrictions outside of what he views as the software boundary. Any indifference over DRM is not a personal choice, it’s the principle that it’s not for him to determine. Linux is a tool, not a religion. He does not intend to control or judge how people use linux as long as it’s within the boundaries of the license he uses. “If you choose not to decide you still have made a choice.” — Rush Again, for those not clear on the tradeoff, this is a choice of allowing Tivoization at the expense of the following freedom:The freedom to study how the program works, and adapt it to your needs (freedom 1).As long as people see the tradeoff, involving just one of many loopholes, limitations, or other problems with GPLv2, I am satisfied. 2006-11-22 2:59 pm jakesdadYou make very good points! 2006-11-21 9:59 pm collinmmicrosoft seem the new sco….what ms patent linux violate? 2006-11-21 10:15 pm deb2006The answer, my friend, is blowing in the wind – and not even Ballmer knows it 2006-11-21 10:37 pm JMcCarthy“… I think they bought it!”Edited 2006-11-21 22:37 2006-11-22 1:03 am chemical_scumNovell well be in a real fix after the GPLv3 is released. They will not be able to use any any patches or upgrades from the GNU userland stack or Samba without violating the license.They have either to claim that the deal with MS covers all users and then MS might not be too happy with that one. Alternatively they have to repudiate the deal, otherwise they will not be able to deliver an uptodate and patchable, for key components, distribution.I think Novell is beginning to realize that they hadn’t thought out the implications of the deal. Bye Bye Hovespian. 2006-11-22 1:39 am deanlinkousnovell should of greased up real good before they bent over, of course they are going to hurt now, even though they want it to stopEdited 2006-11-22 01:40 2006-11-22 4:24 am b3timmonsI assume Microsoft has enough money to hire good lawyers. Here is a snippet from a Microsoft employee–a top “open source” consultant who of course has only the best intentions for “open source”–about how involved it was to figure out how to get around the GPL:Hilf: We started on the general framework for this three years ago. The deal with Novell started about six months ago. There was just a lot of work we needed to do to understand the GPL side of it and not violate the GPL.Yet another indication in case anyone needed another, of the hard, long, deliberate attempt of mostly Microsoft and then the vulnerable Novell to subvert the GPL. If you hate the GPL, then this makes you happy, I suppose. (Of course, that also means you hate how at least how half of all FOSS, including the Linux kernel, is licensed.) 2006-11-22 9:56 am marafakaI’ve heard from everybody by now, except from Linus, it looks like he’s hidden in the deepest mole … er … hole. This fud is specifically about ‘Linux’, his trademark (jeez wadda mess), so I kinda expect him to come out and play. 2006-11-22 3:34 pm SphinxIf he responded to every bit of FUD from Microsoft and their shills we would still be at kernel 1.2. 2006-11-22 5:15 pm b3timmons…consider visiting the following link, an “Open Letter to Novell” that is gathering “signatures”:http://technocrat.net/d/2006/11/22/11247The letter contains a good review of what has been discussed for several weeks on this site.