Tuesday, November 07, 2006

We can live without fear of Microsoft lawsuits

So, after I wrote that last post, I learned of a FAQ that Novell has posted. There are a number of relatively unsatisfying answers to those frequently asked questions, and a suprisingly good message buried beneath all of the angst. Let's roll through the first few of them, shall we?

Q1. How is this agreement compatible with Novell's obligations under Section 7 of the GPL?

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. We have not agreed with Microsoft to any condition that would contradict the conditions of the GPL and we are in full compliance.

Novell's end user customers receive a covenant not to sue directly from Microsoft for their use of Novell products and services, but these activities are outside the scope of the GPL.

Okay...let's take a very close look at this one. There's a reason they placed it at the beginning of the list (the same reason that it was at the very end of CBR Online's article, IMHO). They want it dismissed quickly.

Novell says that they are not in violation of section 7 of the GPLv2 because they personally don't give their customers an offer of freedom from lawsuits for their use ("use" was not defined, by the way) of SUSE Linux. As another hypothetical exercise, then, let us imagine this...

I purchase a subscription to SUSE Linux from Novell (interestingly, there is no mention so far of openSUSE). Assuming this makes me a "customer" of Novell, my use of the software is just fine with Microsoft.

In the Linux world, it is common for users to take a particular distribution (debian, for example) and modify it or customize it and then re-distribute it as its own distribution. So, hypothetically, if I was a Novell customer, and distributed a modified SUSE Linux distribution named "NoMSTaxLinux" I would be covered by the patent covenant from Microsoft to Novell's customers, since Microsoft's covenant not to sue prevents a lawsuit.

Brad Smith said:

We recognized that we would need to build a bridge that would really respect the needs of both models, both business models, that would respect the intellectual property rights and needs of people and companies in both of these parts of the industry. And we would need to do it in a way that ensured that both of our companies remained in compliance with all of our other licensing and legal obligations, given the varied range of license agreements we were already using, and to some degree subject to in our industry.

To do that one of the things we fashioned was an approach that will ensure, for example, that every customer who purchases a subscription, for example, for SUSE Enterprise Linux, will get not only service and support from Novell, but will get as part of that, in effect, a patent covenant from Microsoft.

Here, things darken a bit, but hang in there, they'll get better. If I purchase a subscription, am I lawsuit-fodder once the subscription runs out? If I download a modified SUSE distro created by a Novell customer, can I be sued?

It's interesting to look at where openLinux specifically fits into the scheme of things. It's not a requirement to get any subscription to use it, and it's still available for download, so am I facing a lawsuit by downloading a copy of Linux from the only distributor that Microsoft has made a deal with? Keep reading...

Let's assume that the worst is true, and openSuse and SUSE with no subscription will get you in trouble. In that case, there *are* restrictions on use because of an agreement entered into by Novell. If I refuse their subscription fee, from Novell's perspective, I am using software that will get me in legal trouble. If I pay the fee, to that specific vendor, I am considered "legal". It's difficult for me to see how that doesn't constitute a restriction on the terms of the GPL. If it *does* constitute a restriction, then Novell's right to distribute goes away, and then we have a whole new legal battle.

That's a lot to write about just a single FAQ answer, but there's plenty more to discuss (just not right now). Suffice it to say that I think Novell's offhand "No, it doesn't violate section 7" is severely lacking...besides which, I'm pretty sure it's moot, now that this FAQ is public...keep reading.

Q2. Why did Novell make this deal with Microsoft? Was Microsoft threatening a lawsuit?
Novell started discussions with Microsoft in order to solve problems for our customers by improving Linux/Windows interoperability in areas like virtualization, heterogeneous server management, and office document compatibility. By securing a commitment from Microsoft to support the use of Linux and open source software, we have allayed any potential concerns for our customers and removed a barrier to enterprise-wide Linux adoption.

There was no threatened litigation.

Again, Microsoft has plenty of programmers...bias aside, pretty darn good ones, too...Microsoft has done the embrace and extend dance plenty of times before (I just found out that they bought sysinternals.com in July, for example). With GPL-licensed software, improvements (like the kind that Microsoft would have to make in order to have really good interoperability between Linux and Windows) have to be given back to the project in the form of source code and under the same terms as the original version. That means that Microsoft can't make money from them.

With the Novell deal, Microsoft gets a steady royalty stream from Novell (who Microsoft is trying to drive everyone to with threats of lawsuits) instead of giving code improvements away for free. It's getting pretty obvious what's driving this decision, and it wasn't patents, it was money. Leave it to Microsoft to figure out a way to try and make money off the backs of thousands of coders working at developing a free alternative to their software.

Q3. Is this agreement an admission that Linux products from Novell infringe Microsoft patents?


Patent concerns did not drive our entry into this agreement. Novell makes no admission that its Linux and open source offerings infringe on any other parties' patents. Our position has not changed as a result of this agreement.

A very revealing answer, really, especially when paired with the ones that precede it in the FAQ list. Here we get to see exactly why you don't have to worry about a lawsuit from Microsoft for using Linux or any of the open-source offerings that Novell distributes, regardless of who you get them from. Novell entered into an agreement that protects their own customers from patent claims by the other party to the agreement, but Novell doesn't believe that its Linux and open source offerings infringe.

What does that mean, exactly? Does that mean that Novell believes that its Linux and Open Source offerings are substantially different in areas where there are patent concerns? Does it mean exactly the same thing that the agreement says (If you're using Novell Linux, Microsoft says you're kosher)? Does it mean that Novell believes that Linux doesn't infringe any patents, but entered into an agreement that gives its users pointless coverage against lawsuits for some reason?

Because of the word "its" in the FAQ answer (which I'm sure was run by Novell's legal team a few times), I believe that the second of those guesses is correct. It looks *way* too much like an instance of saying something very specific that looks like the opposite of what it says. I need to do some more digging through public statements to see if anyone in Microsoft or Novell has actually said that Novell believes that non-Novell-sourced Linux and open-source code doesn't violate any Microsoft patents.

The upside of that statement, of course, is that it clarifies whether it is safe to use openSUSE (or RedHat or Fedora or pretty much anything else). If Novell's Linux and open-source code doesn't infringe (and they just told the world that it does not), then I should be able to create a distribution from it and do some extremely heavy customization, and redistribute it, and not have to worry about any Microsoft lawsuits. Beyond that, software patents cover processes, not specific code, so other open-source code for the same programs also doesn't infringe.

Novell has just assured me that any such lawsuit would be impossible, since their code infrines no other parties' patents.

On that happy note, I'll call it quits for this article. Whoever releases NoMSTaxLinux, at least give me a mention, okay?

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