I'm reading it but not seeing it ...
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| Author | Content |
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| DarrenR114 Mar 28, 2007 11:17 AM EDT |
Where exactly is the language that will prevent deals similar to the MS-Novell mutual "won't sue your customers" agreement? |
| azerthoth Mar 28, 2007 11:22 AM EDT |
Last paragraph of section 11 specifically Quoting:You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a patent license (a) in connection with copies of the covered work conveyed by you, and/or copies made from those, or (b) primarily for and in connection with specific products or compilations that contain the covered work, which license does not cover, prohibits the exercise of, or is conditioned on the non-exercise of any of the rights that are specifically granted to recipients of the covered work under this License[, unless you entered into that arrangement, or that patent license was granted, prior to March 28, 2007]. |
| DarrenR114 Mar 28, 2007 11:40 AM EDT |
And guess what - the MS-Novell deal doesn't specify any patents. It is Novell's position that there is no infringement on MS IP within the software it is distributing. The deal is NOT a patent license. and right there in the middle of that clause it specifies "patent license". The deal between MS-Novell is not some sort of "discriminatory protection" - it is a covenant that requires MS to sue Novell directly if they think they've got a case, instead of going after Novell's customers (which is in no way an agreement that is "conditioned on the non-exercise" of IP rights). Dino said it, and here you see it - the FSF *couldn't* come up with a suitable clause to prevent deals like the MS-Novell deal. |
| jimf Mar 28, 2007 11:43 AM EDT |
A little thing called 'no post ex facto' ;-) |
| bigg Mar 28, 2007 11:47 AM EDT |
How is this different from GPLv2? Patent licenses were already prohibited there. There must be more to it than that. |
| jsusanka Mar 28, 2007 12:08 PM EDT |
"I'm reading it but not seeing it ..." because maybe you didn't read the microvell deal - I believe prof. moglen had to sign an nda to read it. |
| DarrenR114 Mar 28, 2007 1:10 PM EDT |
@jsusanka, And Moglen did state that it is NOT a patent license deal. |
| dinotrac Mar 28, 2007 1:27 PM EDT |
jsusanka - I gotta tell ya, I'm kind of at a loss to see how that language would apply to a Novell-like deal, or, at least, the provisions everybody's been making noise about. The argument that it does would be that a mutual agreement not to sue has an effect that is similar to a patent license and thus should be considered to be one, even if no specific patents are mentioned and no specific rights to use the patents are granted. Don't know if that would fly, but it is, at least, an argument. The thing that seems shaky is that a Novell-like deal contains no language with regard to actions by its beneficiaries. It's a third-party grant that imposes no restrictions and grants no rights except for a right not to be sued. That right doesn't come from the GPL so I wonder how it could in any way diminish or alter rights under the GPL. One thing I like about the new provision, tortured though it may be, is that it specifically refers to an exchange of money, which should reduce the potential for abuse. However, I should point out that, in a case like the Novell deal, Novell isn't paying Microsoft a dime. It just says so on paper. At least this language seems, on my first few reads, to be fairly well circumscribed. Maybe not as powerful as some might hope, but not so dangerous, either. |
| tracyanne Mar 28, 2007 3:09 PM EDT |
Maybe it's not designed to harm Novell, but to take the wind out of Microsoft's sails. |
| Abe Mar 28, 2007 8:21 PM EDT |
Quoting:To further strengthen the language, a "patent license" has been defined as "a patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent." Similarly, if software that you know falls under a patent license is distributed, then you must not only make the source code available and disclaim the patent license for it, but also extend patent protection to downstream recipients.GPL3 has it own definition of "patent license" as quoted above. Quoting:Open-source evangelist and developer Bruce Perens confirmed to eWEEK on March 27 that GPLv3 does contain a provision that blocks deals like the one between Novell and Microsoft, and explained how it would work. read more about it at http://www.eweek.com/article2/0,1895,2108409,00.asp Quoting:Torvalds 'Pretty Pleased' About New GPL 3 Draft While at it, read more about it here http://news.com.com/2061-10795_3-6171300.html Time for bed. |
| bigg Mar 28, 2007 8:46 PM EDT |
> If any entity that distributes the software arranges to protect a particular group from patents regarding that software, it must protect everyone They're protected from lawsuits, not patents. The deal AFAIK does not give anyone the right to use Microsoft patents. Novell is not authorized to distribute any of Microsoft's "intellectual property". I don't see that this will have any effect, at least not according to what you have quoted. Just my reading of it. |
| swbrown Mar 29, 2007 1:36 AM EDT |
> Dino said it, and here you see it - the FSF *couldn't* come up with a suitable clause to prevent deals like the MS-Novell deal. Maybe you should read the statement from Stallman explaining how the paragraphs affect the Microsoft/Novell deal before claiming they don't? http://gplv3.fsf.org/gpl3-dd3-rationale.pdf It's full of a lot of really gory details on what it affects and what it compromised on, not just related to Microsoft/Novell, that's worth a read. |
| DarrenR114 Mar 29, 2007 3:37 AM EDT |
@swbrown, It doesn't matter one whit what the *rationale* says - it's what the actual license says, and the point still stands: GPL v3, contrary to the promises made by Stallman, does not prevent future deals structured like the MS-Novell deal, nor would it prevent the MS-Novell deal (even without the "grandfather clause) because the MS-Novell deal is *not* a patent license deal (admittedly by Prof. Moglen) nor is it conditional on the non-exercise of rights by either MS or Novell. |
| dinotrac Mar 29, 2007 3:55 AM EDT |
>Similarly, if software that you know falls under a patent license is distributed, then you must not only make the source code available and disclaim the patent license for it, but also extend patent protection to downstream recipients. OK...now that's weird. Disclaimer...I haven't been able to take time to read all the gory details and discussions around them, but that line has me twisted up in knots...You must both disclaim the patent license and extend the patent protection? How do you do that? The mind must not be sharp this morning because that line sounds like it contradicts itself. As to the Novell deal... With the patent license definition in place, the license may indeed prevent deals exactly like the Novell-Microsoft deal. How many variations on that deal actually get covered will depend mightily on the courts. For example, what if the Novell-Microsoft deal had no per-copy payments to Microsoft? Would the deal still be related to "the extent of" Novell's Linux business? What if it were transacted on a net-value basis? On net, Microsoft paid Novell hundreds of millions of dollars. Novell didn't actually pay Microsoft anything. If the deal were done as a lump sum payment from Microsoft to Novell, it doesn't seem like the new prohibition would apply. At any rate, it looks like they've exercised restraint and done what they could without killing the patient. That deserves kudos. |
| Sander_Marechal Mar 29, 2007 4:09 AM EDT |
I've read the entire rationale and I must say that I like draft 3 a lot better than draft 2. I have one big point of comment though (emphasize mine): You may not convey a covered work if you are a party to an ar- rangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a patent license (a) in con- nection with copies of the covered work conveyed by you, and/or copies made from those, or (b) primarily for and in connection with specific products or compilations that contain the covered work, which license do es not cover, prohibits the exercise of, or is conditioned on the non-exercise of any of the rights that are sp ecifically granted to recipients of the covered work under this License Why the bolded section? That doesn't protect us from patent trolls. Trolls don't distribute software themselves. I fail to see what kind of GPL appropriate patent arrangement exists that would benefit from the bolded section. |
| dinotrac Mar 29, 2007 7:21 AM EDT |
sander - I think the drafters may have been facing reality. My original concern over statements coming out of RMS and Moglen and co was that they would overreact to the Novell deal, and try to make the license do more than it reasonably can do without getting in its own way. After all, the GPL promotes freedom only to the extent it gets used. The new language indicates that common sense has prevailed. Hooray for everyone! They have tightened things up usefully and, so far as I can tell with the very cursory looks I've given, have created a license people can live with. |
| Sander_Marechal Mar 29, 2007 1:55 PM EDT |
I'm afraid that instead of over-reacting they have created a clause that is too easily worked around. All MS has to do is transfer some patents to a shell company that doesn't distributre software themselves and the deal goes on virtually unchanged. I just don't see the need for the "that is in the business of distributing software" piece. The license would be just as nicely tightened up without that clause, without being too broad. |
| dinotrac Mar 29, 2007 2:04 PM EDT |
sander - I must get home now, but when I do, I will take a closer look at all of this and see if I can come up with $.02 to offer. |
| Sander_Marechal Mar 29, 2007 2:23 PM EDT |
Thanks dino :-) What I would really appreciate is an example of a patent agreement that is desirable (or at least condonable) for Free Software that would be impossible if the bit I bolded was removed. |
| swbrown Mar 29, 2007 6:37 PM EDT |
I'd like to see some "What happens if" scenarios answered regarding that section on patents during the review period. It's obviously been heavily twisted to fit some legalese but doesn't have as thorough a "This is what the legalese accomplishes" explanation for non-lawyers as the other changed sections. |
| Sander_Marechal Mar 30, 2007 12:52 AM EDT |
From the Linux.com interview with RMS:Quoting:The trick, he says, was to write the language in Section 11 so that it didn't exclude such agreements as [...] settlements with what he calls "patent trolls" -- companies that acquire patents and earn income through litigation or the threat of it. I *think* I get RMS's reasoning. Without the bolded section I highlighted above, a patent troll could easily cripple an Open Source company. But to counter that: A company shouldn't settle with a patent troll. They should fight them and have the patents invalidated. |
| dinotrac Mar 30, 2007 3:01 AM EDT |
sander - I haven't had time to go through everything yet, but that sounds reasonable. One of my early concerns was that a carelessly drafted provision would allow somebody to effectively make it impossible for anyone to distribute GPL'd software. It's the old problem -- drafting to prevent one thing without opening the door for something ten times worse. Sometimes you just do what you can do. |
| Abe Mar 30, 2007 6:13 AM EDT |
Quoting:Reluctantly, he agreed to include a final sentence that would grandfather the Novell-Microsoft agreement, but he says, "I hope it won't be necessary." Whether that sentence remains, he says, depends on the community feedback received on the draft. The draft is very very good (not excellent yet). The guys did a fantastic job. The big concern was Kernel developers wont accept it, but all indication is they will. Many doubter kept saying it is going to ruin the GPL and impact FOSS in a negative way, the contrary happened. Many doubters didn't trust RMS or Moglen, they suspected them in sabotaging and antagonizing commercial software companies and trying to alienate them, all indications show that RMS & Moglen are sincere and doing their best to keep software freedom alive and well not by granting it to all users, but also by protecting from hostile thieves and hoodlums. The quote above shows how cautious but fair they are. Even Novell is getting a fair chance by keeping that clause for the community to decide on Novells destinay. I believe some doubter should eat their words and apologize for some of the statements they made. Yes, you know who you are. It takes a "big" person to do that. |
| dinotrac Mar 30, 2007 6:27 AM EDT |
>I believe some doubter should eat their words and apologize for some of the statements they made. Yes, you know who you are. It takes a "big" person to do that. If you're referring to me, you've got your facts wrong. I have repeatedly said that I expected reason to rule and that the final draft would be less all-encompassing than some of the talk that preceded it. |
| DarrenR114 Mar 30, 2007 8:05 AM EDT |
@Abe, If you're referring to me, I'm not going to eat my words - Section 11 would not prevent the MS-Novell Deal from occurring - the deal was not, and is not, a patent licensing agreement. Therefore Section 11 doesn't apply. Nor is the MS-Novell conditional on either party giving up any enforcement rights. MS did *not* give up the right to sue for patent infringement, and neither did Novell. They only agreed that they'd sue each other and not their customers. Therefore, Section 11 again doesn't apply. In other words, Stallman and Moglen failed to do what they claimed from the outset that they would do: they failed to word the GPL so as to put the kibosh on the MS-Novell Deal and prevent similarly structured deals from happening in the future. |
| dcparris Mar 30, 2007 8:30 AM EDT |
Abe, Darren does have a point. Others have pointed out that theMS-Novell deal has effectively been grandfathered in, but RMS hopes that won't be necessary in the final draft. Iow, he's hoping to be able to drop the line that does that. |
| DarrenR114 Mar 30, 2007 10:24 AM EDT |
Don, Even without that "grandfather" clause, the deal stands unimpacted. It's *not* a patent license deal (which is what Section 11 is about and why it's not in violation of Section 7 of GPL v2) and the deal is not conditional on the non-enforcement of rights by either MS or Novell. If MS wants to sue for Novell's infringement of their IP, they're still free to do so, even under the current terms of that convenant. |
| Sander_Marechal Mar 30, 2007 2:29 PM EDT |
Darren: The GPLv3 3rd draft carries it's own definition of patent agreement, which would cover the MS-Novell deal:Quoting:For purposes of the following three paragraphs, a "patent license" means a patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent. |
| DarrenR114 Mar 30, 2007 3:32 PM EDT |
@sander, It is NOT a covenant not to bring suit for patent infringement - under this agreement MS can sue the pants off of Novell for patent infringement. |
| Sander_Marechal Mar 30, 2007 3:52 PM EDT |
I think the Novell deal falls under the "any other express agreement or commitment, however denominated, not to enforce a patent" part. It also depends on the wording in the MS-Novell contract, which we don't have. Eben Moglen has seen the contract (under NDA). I trust he's made sure that the current draft does cover the MS-Novell deal. |
| DarrenR114 Mar 30, 2007 4:02 PM EDT |
But there is *NOTHING* preventing MS from enforcing its patents - and Novell has publically stated that there is *NOTHING* in the current draft of GPL that would impact its Linux business. But we shall have to wait and see, until the final version is released ... another six months. |
| Sander_Marechal Mar 30, 2007 4:12 PM EDT |
Darren: Did you comment on the draft? Check http://gplv3.fsf.org/comments/gplv3-draft-3.html I left a comment on the "that is in the business of distributing software" clause. |
| Abe Mar 30, 2007 6:52 PM EDT |
Darren, Like sander said, why don't you comment on the draft? I am sure some one will clarify the relevant points much better than I can. IANAL Quoting:But there is *NOTHING* preventing MS from enforcing its patents That is for sure, MS can do whatever they want, they have the funds to sue any one for anything. The point though is whether they can win at the end or not and what harm they will bring upon themselves when their bogus patents are nullified or invalidated. Let's wait and see how MS is going to react or respond with respect to GPL3 when it is approved and adopted by most FOSS developers. edited: I am sure you are not going to be convinced easily, and I guess it is going to take a ruling in court to convince you. I have no idea when that would happen. We might have to wait for a very long time to see that unless MS is getting too threatened. |
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