Yawn.
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| Author | Content |
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| dinotrac Nov 13, 2006 7:46 PM EDT |
Gosh, even Eben Moglen can't seem to come up with a decent argument on this one. The Novell deal, from what I can see, is bad because, well, people don't like it. Everybody brings up section 7, but I wonder how many have actually read it, or, in the case of Moglen, wish to stay within its scope. The relevant text: "If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program." I haven't seen a damned thing to indicate that my right to distribute GPL programs from Novell's distribution is in any way diminished by the agreement with Microsoft. I can't see any difference in my right to distribute Apache that I receive from Novell (which is on my home network) and my right to distribute Apache that I receive from the Fedora project (which is on my public web server). If I distribute on of each to you, you will find no difference in your ability or rights to redistribute them, even though you have paid my no royalties. So, what's the beef? The real problem is a surfeit of OCD control freaks. The GPL is a very nice and very powerful instrument. Like any license with room enough to operate usefully in the real world, people will find ways to operate within its terms that you or I might not agree with, or might wish that they hadn't. Tough. The FSF holds the rights to some software that is in the Novell distribution. Enough of this stupid pissing and moaning. If they think they have a case, let them press it. I would expect them to be laughed out of court on this one. |
| jdixon Nov 13, 2006 9:19 PM EDT |
> If I distribute on of each to you, you will find no difference in your ability or rights to redistribute them, even though you have paid my no royalties. The question isn't whether the FSF agrees with you or not. The question is, does Microsoft agree with you? If they don't, then they can claim you can't distribute. Are you willing to take the risk of Microsoft taking you to court? If not, you can't distribute SUSE. |
| dinotrac Nov 13, 2006 11:54 PM EDT |
>If they don't, then they can claim you can't distribute. Are you willing to take the risk of Microsoft taking you to court? If not, you can't distribute SUSE. Ummm... I think you've got that back-asswards. SUSE distributes the same software everybody else does, with the same licenses. If you're worried about Microsoft suing you, SUSE, it seems, would be the one to go with because Microsoft has promised NOT to sue you. Nothing in any agreement between Novell and Microsoft (certainly nothing that has been made public) alters your right to redistribute GPL'd software. NOTHING. The software is GPL'd. It grants you that right. Period. Apache is apache. Perl is perl. The GIMP is the GIMP. Whether it comes form SUSE, Fedora, Mepis, Gentoo, or Debian. The software is the same. The license is the same. Lots of hand-wringing. Lots of "Gosh...you sat down and signed papers with that evil Microsoft." No substantive arguments as to why and how this agreement violates the GPL or does anything other than make us worry that Novell will suffer the fate that all Microsoft partners do. No. Wait a minute. That's not quite true. Make that all Microsoft partners except for Apple. Remember when Steve Jobs signed Apple's big deal with Microsoft? Lots of howls then, too. Justifiable, too. It was a scary thing to do. Apple did, however, get a bunch of cash out of the deal, not to mention some time to turn its sinking ship around. Hmmmm. |
| jdixon Nov 14, 2006 2:50 AM EDT |
Dino: I thought about this for some time now, and I don't agree with you (as if that isn't obvious). Microsoft's stated position is that there is infringing IP in Linux and that's what the covenant not to sue covers. The covenant is not transferable. Therefore, in Microsoft's eyes, your are breaking the GPL by re-distributing Novell's programs. From their position, they are free to sue users of any other distribution, or users who re-distribute Novell's programs. I obviously don't agree, but it's a kettle of fish I want nothing to do with, so I'll stay as far away from SUSE as possible until it's settled. Not that that's an issue, since I already avoided SUSE for other reasons (most of which HAD been resolved by Novell) and Slackware meets my needs. This confusion may be exactly what Micrososft wants. Since, as you note, there is no way to determine the original source of the programs, they may hope to poison the well and raise questions about the redistribution of any GPL'ed code. |
| dinotrac Nov 14, 2006 4:11 AM EDT |
>Therefore, in Microsoft's eyes, your are breaking the GPL by re-distributing Novell's programs. From their position, they are free to sue users of any other distribution, or users who re-distribute Novell's programs. a. Since when do we give a rat's ass what Microsoft thinks of anything GPL? Microsoft makes no claims about the GPL and couldn't care less. Microsoft has made loud noises about patent infringement, but has yet to make a single concrete claim. What restriction has the Microsoft/Novell agreement placed on you or anybody else with regard to redistribution of GPL'd code? The answer is none whatsoever. Zip. Zero. Nada. With or without the agreement, Microsoft is free to sue the users of any other distribution. Without the agreement, Microsoft is free to sue the users of Novell's distribution and anyone to whom they redistribute the code. WIth the agreement, Microsoft refrains from suing users of the Novell distribution who are Novell customers. I'm fuzzy on the status of OpenSuse users, and people who got their Suse from someone other than Novell. Even so, look again at the language of Section 7. This agreement does not conflict with that language. It might conflict with what you wish that section said. It might conflict with what Eben Moglen and RMS really, really meant for it to say. What it doesn't do is conflict with the license that actually exists. |
| jdixon Nov 14, 2006 5:02 AM EDT |
> Even so, look again at the language of Section 7. This agreement does not conflict with that language. It might conflict with what you wish that section said. It might conflict with what Eben Moglen and RMS really, really meant for it to say. What it doesn't do is conflict with the license that actually exists. Dino, I'll accept your opinion as probably having more validity than mine, given your background, but I still don't agree. It seems to me that by using SUSE after the agreement was signed you agree to the covenant, thereby granting it's validity (sort of like using a credit card after the terms of use have changed) and agreeing to be bound by it. That means you accept that you are covered by a patent pledge which you cannot pass on when you distribute GPL'ed code. That, to me, looks like a violation. I think I understand that your position is essentially that the pledge has no standing (I'm not sure that's correct legally, as standing has a specific legal meaning, but it's correct English), but remember my default position: I don't trust anything that comes from Microsoft. I think we'll have to agree to disagree on this, and see how things come out in the wash. I think we agree that the agreement appears to be a good strategic move to attract business customers on the part of Novell. |
| Sander_Marechal Nov 14, 2006 5:40 AM EDT |
/me dons tinfoil hat An interesting thought just sprang my mind: What if the agreement actually means that Linux (Suse specifically) is totally free of Microsoft IP? Just turn the arguement upside down. The agreement means that Novell cannot redistribute Suse under the GPL anymore because Suse end-users cannot sublicense the patent pledge when they pass on the software. The fact that Suse and it's end-users are still distributing must mean that the patent pledge covers exactly zero patents. After all, it's the only way that the requirements of both the pledge and the GPL can be fullfilled and the end result still distributed. So, has Microsoft by signing the agreement affirmed that there is *no* MS IP in Linux? :-) |
| dinotrac Nov 14, 2006 5:52 AM EDT |
Sander - >So, has Microsoft by signing the agreement affirmed that there is *no* MS IP in Linux? :-) Gosh, wouldn't that be nice? Of course, with all of the junk patents on the books, nobody can guarantee that anything doesn't infringe some patent somewhere. That, I think, is the real point of the Novell agreement -- at least with regards to patent protection. Getting Microsoft to say, "Sure, boss, I'll back off" was a nice bonus and a selling point for corporate clients. For all the fuss we've made over it, I take Novell at it's word that the patent protection wasn't the main point of the agreement. Novell sells directory services and collaboration software, not just Linux. Assurances of smoother interoperability could be a big boon to its business. |
| dinotrac Nov 14, 2006 6:13 AM EDT |
>I think I understand that your position is essentially that the pledge has no standing (I'm not sure that's correct legally, as standing has a specific legal meaning, but it's correct English), As Kay Kyser, the ol' Professer of Swing would have said back in the big band days, "That's right, you're wrong." But not that wrong. Legal standing has to do with your right to bring an action to court. In the US, that means you must be able to demonstrate that you have suffered a legally redressable harm. The better word in this case is relevance. In computerese, you could consider the agreement to be orthogonal to the GPL. I think that's what's giving people fits. They want to see Novell's agreement in terms of the GPL , but it doesn't go. Novell doesn't own the rights to 99+% of the code in its distribution. They couldn't alter the license terms if they wanted to, and neither can Microsoft. That's why nothing in the agreement affects the redistribution of the software. Novell can't affect that right and neither can Microsoft: it's a grant from the copyright holders. What they have negotiated sounds a lot like a quitclaim. In real estate, a quitclaim is often used to clear up questions about property without taking legal action so that title can be insured. If, for example, old surveys,etc., gave reason to believe that I might have a claim on the easter 3 ft of your lot, I could give you a quitclaim surrendering any and all rights I might have to the property. The quitclaim does not signify that I have ever had any ownership rights whatsoever in your property. It merely says that, whatever I may have, even if it is nothing at all, I surrender it to you. Microsoft has made no specific claims -- ie, a list of patent claims -- that Linux infringes Microsoft patents. Novell has not specified that it is licensing any specific patented technology. Microsoft has agreed not to sue Novell customers, even if they have no basis at all for suit. >but remember my default position: I don't trust anything that comes from Microsoft. That's just because you're smarter than the average bear. |
| jdixon Nov 14, 2006 6:54 AM EDT |
> What they have negotiated sounds a lot like a quitclaim. I agree that's how Novell is trying to position the agreement. I'm not sure Microsoft agrees. Of course, as always, Microsoft is trying to use this in multiple ways and therefore refuses to clarify. > That's just because you're smarter than the average bear. Now if I could just figure out where I left that pic-a-nic basket I had for lunch. :) |
| Sander_Marechal Nov 14, 2006 2:15 PM EDT |
@dinotrac: I don't think a quitclaim is time-limited and paid for with royalties. |
| jdixon Nov 14, 2006 2:55 PM EDT |
> I don't think a quitclaim is time-limited and paid for with royalties. A quitclaim has whatever value the buyer and seller can agree to, and can be paid for however they wish. |
| dinotrac Nov 14, 2006 3:22 PM EDT |
sander - Not usually, and the Microsoft/Novell deal is not exactly a quitclaim, but it is in the nature of one. |
| rijelkentaurus Nov 15, 2006 5:25 PM EDT |
I just see that a deal with the devil is a bad deal. If Country A says that they won't attack Country B or its citizens abroad, but sabre-rattles and threatens Counties C, D, E, F, etc., you wouldn't say that was a moral choice, even if it made practical sense for Country B. That's usually just something to lull a worthy opponent and ready them for a sneak attack. I think Novell is crazy to trust Microsoft on any level, and I think anyone else who does is also a little too trusting. I hope that I am wrong, I really do, but I'm not getting near SUSE, and Microsoft has done nothing...NOTHING...to warrant the least amount of trust on any level. |
| dinotrac Nov 15, 2006 5:52 PM EDT |
>I just see that a deal with the devil is a bad deal In which case one could never sue for peace after a war, or, that Reagan and Gorbachev could not have reached a deal that, for the first time in modern history, actually reduced the nuclear arsenals of the US and the Soviet Union. Sometimes the devil is the very person you need to make a deal with because it is the devil who wants to hurt you, not your friends. |
| jdixon Nov 15, 2006 8:32 PM EDT |
> Sometimes the devil is the very person you need to make a deal with because it is the devil who wants to hurt you, not your friends. Only if I can have Daniel Webster as my representative. :) |
| dcparris Nov 15, 2006 10:17 PM EDT |
I don't know. You might prefer Stallman. He definitely doesn't mince words, and has a good eye for attempts at re-defining terms. |
| rijelkentaurus Nov 16, 2006 1:21 AM EDT |
>In which case one could never sue for peace after a war, or, that Reagan and Gorbachev could not have reached a deal that, for the first time in modern history, actually reduced the nuclear arsenals of the US and the Soviet Union. Those weren't deals with the devil, those were deals between devils. >Sometimes the devil is the very person you need to make a deal with because it is the devil who wants to hurt you, not your friends. Not exactly a lesson that gets taught in Sunday school, eh? Or in a synagogue, or a mosque.... I wonder why? |
| jdixon Nov 16, 2006 2:47 AM EDT |
> You might prefer Stallman. I think Stallman would be too likely to fall for the gambit used in "The Devil and Daniel Webster". He's too single minded. Edit: Here's a link (http://www.gckschools.com/vhs/eng3/fall/romantic/danwebread....) for those unfamiliar with the story. |
| theboomboomcars Nov 16, 2006 5:49 AM EDT |
Quoting:think Novell is crazy to trust Microsoft on any levelHow do we know that Novell trusts MS? Maybe they saw this just as a way to get some money from MS, and a way to increase their enterprise business. Novell has said that they don't believe that there is anything infringing code. They originally went in for working together on interoperability, and maybe thought MS would be willing to work on that, since that was one of the key aspects in the EU anti-trust case. Then MS, since they had Novell in the negotiation room, added the patent thing and since Novell doesn't think there is any infringing code in linux, samba, mono, OO.o said what they hey, why not we get some money and a MS stamp of approval on our distro. Since these are business men they didn't think, how will this affect our relationship with our community, they just saw the dollar signs. |
| dinotrac Nov 16, 2006 5:50 AM EDT |
>Those weren't deals with the devil, those were deals between devils. Now isn't that an interesting observation, one which punctures your whole argument. Devils (as opposed to The Devil) tend to lie in the eye of the beholder. Even when it's Microsoft. For that matter, from the perspective of a Microsoft employee or reseller, Microsoft could be the one who made a deal with the devil. |
| dinotrac Nov 16, 2006 5:53 AM EDT |
>How do we know that Novell trusts MS? Bingo. In the old days, Texas oil men would make deals with a handshake. That's trust. The use of a legally enforceable agreement requires that you trust your lawyers more than it requires you to trust the other guy. Trust is still nice, but it's good to get a backstop. |
| bigg Nov 16, 2006 2:07 PM EDT |
I can't claim credit for pointing this out by any means, but if Microsoft did take someone to court and succeeded at shutting down their distribution of anything in suse, then Novell would be in violation of the GPL and would have to stop distributing suse. I agree that Microsoft simply asserting their IP claims probably doesn't put Novell in violation of the GPL. This gives rise to the interesting case where Microsoft could take a small distribution to court, win because the distribution doesn't have any money to fight the case, and shut down the sale of suse due to GPL violations. Novell would have to stop distributing Linux, would have no way to defend itself because they weren't the ones being sued, and to boot could not retaliate against Microsoft because of their agreement. Of course this is a hypothetical situation, but I sure hope Microsoft sues me for giving my friend a copy of Debian. |
| dinotrac Nov 16, 2006 2:16 PM EDT |
bigg - Huh? How does Microsoft suing some other distribution put Novell in violation of the GPL? Would that also shut down Red Hat, Ubuntu, Mepis and all of the other Linux distributions? If not, why not? |
| Sander_Marechal Nov 16, 2006 2:46 PM EDT |
dino: it would. All distro's would have to cease distribution and remove the offending code when MS wins a court case on patent infringement. Bigg's point is that MS may have postponed suing a distributor for fear of retalliation from Novell. The MS-Novell deal means that Novell can't retalliate - paving the way for MS to sue a small distro distributor without money to defend itself. A nice theory but if I were MS, I'd fear IBM's retalliation more than Novell's. |
| jdixon Nov 16, 2006 3:55 PM EDT |
> would have no way to defend itself because they weren't the ones being sued, That what amicus briefs, paid lawyers, and financial assistance are for. No one can stop Novell from helping the target of Microsoft's suit with free legal advice and money. > The MS-Novell deal means that Novell can't retalliate... How? Novell has no agreement not to sue Microsoft, or vice versa. Their agreeement is not to sue their users. |
| dinotrac Nov 16, 2006 7:45 PM EDT |
>Bigg's point is that MS may have postponed suing a distributor for fear of retalliation from Novell Y'know, that one actually makes a modicum of sense. I'm not at all sure that I buy it, but that makes a lot more sense than some of the stuff I've seen put out. And, yes, if there is an actual patent infringement, that would be the case. Of course, that would be the case with or without the Novell-Microsoft agreement. It won't go down that way, though, for one simple reason. It's a legal concept called res judicata. Essentially, a finding of fact in a court of competent jurisdiction can bind others and be applied to other cases in the same jurisdiction. This is different from rules of precedence because the fact has to be the same fact. For example, Microsoft's position in antitrust lawsuits was made more difficult because of the federal government's courtroom victory. Plaintiffs will still have to establish specific fact scenarios and demonstrate damages, but the fact of Microsoft's monopoly status in desktop PC's has already been established. That's a big deal. So...if you're Red Hat or Oracle or IBM, you do not want a significant federal court finding that Linux code violates a patent, lest that finding find its way into an action against you. |
| Sander_Marechal Nov 16, 2006 9:44 PM EDT |
Quoting:So...if you're Red Hat or Oracle or IBM, you do not want a significant federal court finding that Linux code violates a patent, lest that finding find its way into an action against you. The GPL requires that infringing code would have to be removed anyway, so after MS wins against a small distribution, everyone would replace the code and Linux would be patent free again. This means that the ruling would be irrelevant to another lawsuit, right? |
| dinotrac Nov 17, 2006 4:19 AM EDT |
>This means that the ruling would be irrelevant to another lawsuit, right? No. Relief for patent infringement includes compensation for lost royalties, not just an order to remove offending code. The other case to consider is that the code may not infringe but the defendant lacks the legal resources to establish that. I have no doubt that the sharp lawyers available to the likes of IBM or Oracle could find a way to make the case that an issue was not actually contested, but why start 10 paces back of the starting line with a bag of cement on your shoulders. |
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