I must say Novell is wrong:
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| Author | Content |
|---|---|
| Jack_ Feb 06, 2007 1:20 PM EDT |
An owner of a license, is an owner, and a license is a document that ties users to the owner, no outside agreements or contracts change that without the owner being included, as Novell seems to believe they can.
Patents have been the talk for years, SCO set it off; but patents and the threat of them have been around longer.
What the GPL3 addresses is, to take the control patents have when included, in this case, open source software that is not in agreement with GPLv2 where one is not allowed to end the rights of users. If all users in a development down-line, are going keep the same rights, and GPLv2 does not stop changes that do end those rights at any point in that down-line; what legal right would anyone have to state that they have the right when nothing with legal teeth stands. Bottom line question is, if a license has no legal rights that are given, what protects the owner(s) from a simple act as someone to steal form them. It is within FSF rights, to take action on whatever Novell does and this action is legal. Novell using GPLv2, is not going to be a problem for anyone, but Novell that is, those developers devepments that use the GPL3, Novell will find that fighting with project owners will damage them more in the community. The community sees all, and Novell will find less while going about open source respect'less. . |
| DarrenR114 Feb 07, 2007 5:17 AM EDT |
You're making assumptions that Novell will be in violation of software licensed under GPL v3. We have yet to see that. No one has yet presented any software package, that if licensed under GPL v3, Novell would be in violation of said license. Simply saying that "Package X is now licensed under GPL v3 and since Mr. Stallman says Novell is in violation of GPL v3, Novell must be infringing on package X copyright" will not be enough. If Novell is to be held in violation of such license, specific patents which apply must be indicated. And when the owners of the copyright specify said patent, they'll be opening themselves up to lawsuit from the patent owners. Now in that scenario, two things will *have* to happen - the package owners will have to license the patent directly from the patent holder, or the patent will be nullified. In either case, there would no longer be any possible license violation on the part of Novell. |
| dinotrac Feb 07, 2007 5:21 AM EDT |
DarrenR114 - The FSF has a bigger problem than Novell. How do they write a license that prevents Novell from distributing without also stopping Red Hat or a number of others? I don't believe they can do it. If they come up with something that could actually prevent Novell from distributing Linux, I believe that would generate sufficient threat to other distributors, users, and supporters of Linux that any needed tools are forked off and supported by a consortium -- one likely to include IBM. |
| DarrenR114 Feb 07, 2007 5:29 AM EDT |
Dino - I agree ... I said it in another thread to this article: the FSF has painted themselves in a corner. And I think it goes beyond RedHat and Novell - IBM distributes both RHEL and SUSE distributions, as does HP. Is the FSF ready to sue IBM and HP as well? If they want to avoid "voiding" the copyright, they'll have to. |
| dinotrac Feb 07, 2007 5:34 AM EDT |
>If they want to avoid "voiding" the copyright, they'll have to. I don't know what you mean by that. What is "voiding a copyright"? You can assign a copyright to the public domain, effectively voiding it. Is that what you're talking about? |
| DarrenR114 Feb 07, 2007 5:38 AM EDT |
Dino - "surrendering" would have been a better term as far as a singular word, as in "surrendering all rights and privileges." But what I was thinking was "assignment to the public domain" through inaction - failing to aggressively defend the work. |
| dinotrac Feb 07, 2007 6:18 AM EDT |
>But what I was thinking was "assignment to the public domain" through inaction - failing to aggressively defend the work. You're confusing copyright with trademarks. There is no requirement to defend a copyright. |
| DarrenR114 Feb 07, 2007 6:27 AM EDT |
I do get confused sometimes. while there is no requirement for defending a copyright, it would provide a good "affirmative defense" for Novell, would it not? "They're not suing IBM for this. Why are they suing just us?" What do you think? |
| dinotrac Feb 07, 2007 6:44 AM EDT |
"They're not suing IBM for this. Why are they suing just us?"
What do you think? I don't think it buys them very much...but... I've been rolling around in my mind what happens if the FSF drafts V3 in a way that very clearly targets Novell and nobody else... There might be something to that in court. |
| DarrenR114 Feb 07, 2007 7:09 AM EDT |
If I understand what you're saying correctly, that brings a very sticky situation for the FSF. If they create a clause specific to Novell, then that leaves the door open for everyone else to do what the FSF doesn't want Novell to do. If they don't create a clause specific to Novell, and then sue just Novell, then the FSF leaves itself open to pre-emptive lawsuits comparable to the one Redhat launched against SCOG. From what I understand, Redhat is suing SCOG for a finding of "non-infringement", and IBM has filed a motion for a summary judgment of the same thing. And since Redhat has already shown a willingness to do such a thing, and as you pointed out, is also offering similar "patent protection" as Novell, it would not be surprising to find the FSF mired down in the middle of a mult-front war in court. Redhat would need to protect its own interests, as would IBM and HP. Is that a realistic perception of the situation? |
| jsusanka Feb 07, 2007 9:35 AM EDT |
they are right in saying that any current version is safe but what will be disputed is the newer versions. kind of glad to see novell sweat it out - I don't see what they are worried about - they can make new versions gpl3 compatible it is just microsoft that will have the decisions to make as far as the deal goes. and that is the way it should be. I think we should have provisions in there specifically for microsoft and that would send a distinct message that we do not need their wonderful IP and their so called innovations. I have been watching these videos from 1998 on the netscape stuff for the first time and microsoft has not changed their ways they are just taking it to another level with hardware drm and vista. http://iowaconsumercase.org/lc-8.html |
| tracyanne Feb 07, 2007 12:35 PM EDT |
Maybe, just maybe, the FSF isn't out to get Novell. Maybe, just maybe, the Novell/Microsoft deal clarified some issues that the FSF hadn't thought through properly in their initial drafting of GLP3, and that with respect to Novell, all they are doing is attempting to close the loopholes that the Novell/Microsoft deal highlighted, but that they intended for those types of things to be covered anyway. And maybe all this FSF/Novell rhetoric is Much ado about Nothing. |
| azerthoth Feb 07, 2007 1:46 PM EDT |
I keep going back to a comment Jeremy Allison made when he was interviewed on tllts. To paraphrase 'The changes to GPL3 being made because of the microsoft deal arent about punishing Novell. The changes that are being made would concern MS only.' Personally I dont see any need to punish Novell. In fact if played right it could open up all the applicable MS patents that they claim they have to the open source community. That it seems would answer how to deal with the deal without also hammering any other distro as collateral damage. |
| Jack_ Feb 07, 2007 3:45 PM EDT |
Thanks for the feedback, "You're making assumptions that Novell will be in violation of software licensed under GPL v3. " no, its about the GPL2, I cannot make assumptions about a license not in use nor complete, I mention about what the GPL3 addresses as far as patents go, that is imo a violation of the GPL2, because patents don't grant rights to users as the GPL does. If Novell's deal includes Microsoft patents at all in any shape or form it is, again imo a clear violation when users rights will under the GPL2 be limited or lost. "What the GPL3 addresses is, to take the control patents have when included, in this case, open source software that is not in agreement with GPLv2 where one is not allowed to end the rights of users." I have failed to read in the GPL2 where one as Novell in this case, has any right to make deals that cover so much foss code. Correct me, but to make deals with code under license(s) that grant rights to its users, and if those deals happen to not have the ok of the owners, is this not in some way taking the rights of those owners and users alike away. Something must be done that is clear, the FSF should not direct the GPL3 only at Novell, no, I would hope not, the GPL3 to be a tool for that part of the community that have voiced against the Novell deal, see the threat and want control over code they GPL for use. |
| dinotrac Feb 07, 2007 4:10 PM EDT |
>I have failed to read in the GPL2 where one as Novell in this case, has any right to make deals that cover so much foss code. Why not? You, for example, have every right to make a deal with local businesses that you will provide installation, maintenance, training, and assorted technical support tasks for, say, Debian. You don't need the authors of that code to give you permission to do that, so you can make the deal. Novell hasn't made any deals that require permission from the owners of the free software in question. They have made a deal under which Microsoft has promised not to sue people. The authors of all that free software have no control over whether Microsoft sues people. Microsoft does. |
| Jack_ Feb 08, 2007 1:50 PM EDT |
A license should protect the owner, ("owner" being an original software creator using the license) however, without sound policies though, a license will fail to protect. While no license can consider every scenario, however it is the license position to communicate and represent well the owner's rights of control, in the relationship between owner & end-user because, neglect of attention to this relationship fails to establish a requirement, the requirement being the owner can open communication with end-user(s) on date(s) if evidence is realized, the software copy obtained by end-user(s) is in violation under the license by any and all action(s) of end-user(s). In the Novell case, it seems no foss developer has a say, and that should bring questions about the lacking of the GPL2 not to protect owner developers. In the Novell-Microsoft deal case, Novell is and remains an equal foss end-user, are under the same license(es) as anyother foss end-user and does answer to all those owner developers and must respect the license Novell obtained their work under. Without "protection" within a license of how patents and the rights and control of the owner (original creator), are to be in balance, is a threat to every developer. Presently the GPL2 does not protect owners where patents may come in, those patents that are by construct, are or intend to gain control of owner and end-users rights through policy(ies) not related under the license. FUD has make an unclear picture that now fear, through the exchange of ideas and opinions about foss business and legal scenarios, patents gain new perspective, present a stronger threat. The position of most of the community has always been to my knowledge, is the control of patents, how they may impact developments as well as foss as a whole. The Novell + Miccrosoft deal case is one, that stands to show how difficult it is to control patents when no owner tool(s) in the GPL2 are present to deal with them. Any lack of attention to organization of the foss license(es) owner(s) end-user(s) rights structure that may fail to protect owners and end-users, along with not taking action(s), creates the opportunity for the creation of more such deals that will include directly or not, more patents. The "protection" under the deal Microsoft offers already means no alternative, the GPL2 code Novell includes in its Novell-SuSE distribution, is already being limited in rights even to the owners, as the "protection" does not allow these owners creation of new work as it applies to Novell-SuSE, for financial gain, as well those owner developers that take that same work outside Novell-SuSE are left with imo the suggestion they are open to lawsuits from their work. While anyone could sue you for your work, this is not the case with the Novell-Microsoft deal, owner & end-user rights are imo driectly are being limited because of patents and lost through fear. This situation is not in agreement with the GPL2, as it does apply to the rights outlined under the GPL2 license, those rights are not to be limited or lost for any reason. Thank you, I believe I have said enough on this. Jack_ |
| DarrenR114 Feb 09, 2007 4:50 AM EDT |
We will have to agree to disagree, Jack_. Dino and I (as well as many others) do not see the MS-Novell agreement as restricting the ownership rights to any GPL v2 licensed code. There is no action that is permitted under the GPL v2 that is restricted by the MS-Novell agreement. It's that simple. |
| swbrown Feb 09, 2007 5:39 AM EDT |
> There is no action that is permitted under the GPL v2 that is restricted by the MS-Novell agreement. It was rather kind of Microsoft to point out this problem before GPL3 was finalized. :) |
| DarrenR114 Feb 09, 2007 5:57 AM EDT |
But that's just it - there's no denial of any freedom under the GPL v2 that is restricted by the MS-Novell agreement ... So why bother creating a special clause in the v3 to address a problem that doesn't exist? |
| dinotrac Feb 09, 2007 6:55 AM EDT |
>So why bother creating a special clause in the v3 to address a problem that doesn't exist? I think its more a matter of the FSF deciding that the GPLV2 itself has a problem and that the license they would really like to have would not permit such a arrangement like the Novell-Microsoft deal. Personally, I think they're nuts and have a nasty drafting challenge ahead of them, but that's just one man's opinions. |
| swbrown Feb 09, 2007 7:29 AM EDT |
> So why bother creating a special clause in the v3 to address a problem that doesn't exist? It addresses one of the tricks that can be used to 'un-free' software. Think of it this way, if you wanted to get the benefits from a Free Software project and deny it to others, basically attempting to steal a Free Software project, how would you do it? Think about it in terms of BSD licensed code - what would some of your strategies be? The GPL is an attempt to think up all those kinds of attacks in advance and roadblock them. It's why it's such a popular license - authors don't like being jerked around. Microsoft and Novell discovered a patent related attack that near-misses the language of section 7 by being really convoluted, which is why it's being fixed. 'Nothing to see here'. |
| bigg Feb 09, 2007 7:52 AM EDT |
I don't understand how they're going to fix the problem, as in the precise language they will use. Clearly the problem is not that Microsoft is promising not to sue. If so, I will wait until GPL 3 is in place, short a bunch of Red Hat stock, and publicly promise not to sue Red Hat. That would shut down Red Hat according to this line of argument. I hope for the opportunity to do that because I like money. Or perhaps they will make it against the license to give someone a gift with a Linux distribution. In other words, you won't be able to install Linux on someone else's computer unless you are willing to install Linux for everyone else in the world. I'm sure they have a good idea of what they plan to do, but until I understand the problem with the deal, beyond just saying "it violates the spirit of the GPL" I won't understand how the license will be changed without, as Dino says, affecting a very large number of companies. |
| DarrenR114 Feb 09, 2007 8:18 AM EDT |
swbrown - What you're describing still doesn't make software projects "un-free". No matter what deals MS makes with anyone, software licensed under GPL v2 (v3 isn't out yet, so I don't even speculate about it) will remain free. Any entity can make whatever modifications they want to the software code, and regardless of any kind of "patent agreement" (or any contract agreement for that matter) they may have, the original code is still available to the rest of the world under the same rights that the modifying entity had in the first place. Whether or not such modifications (and terms for copying them) violate the original licensing is irrelevant to my rights to the original software. So then, the sort of agreement that MS and Novell made is not a sneaky way of making any software "un-free". To make a project "un-free", an entity would have to possess the only copy of source code and lock it away from the world. This would be a practical impossibility. Look at what happened with DeCSS when the MPAA was pushing against it. |
| dinotrac Feb 09, 2007 8:25 AM EDT |
Darren - Yup. That is the correct analysis. You must remember, however, that some folks are not about freedom per se, so much as "freedom per RMS say". |
| swbrown Feb 09, 2007 8:35 AM EDT |
> What you're describing still doesn't make software projects "un-free". You fail to think adversarial. I'm glad you don't write Free Software licenses. :) If a Free Software project can be made to be illegal to distribute for all but one source, that's a HUGE dangling carrot for that source to try as hard as possible to enact that scenario. It effectively 'un-frees' the software since you can't exercise the rights it grants you. The GPL attempts to remove such carrots to protect the software. Read section 7 and try and understand why it was written. |
| DarrenR114 Feb 09, 2007 8:46 AM EDT |
swbrown - I do think adversarially, but your scenario is an impossibility: Free software projects, licensed under GPL v2, cannot be made illegal to distribute for all but one source. There is no way. No matter what deals one entity (even the copyright owner) may make with another, software released under the GPL v2 will remain legally accessible to the world at large. And that's the beauty of the GPL - so even if an entity changes its mind, it can't take the software back. It may keep any future versions of said project away from the world as closed source, but once licensed under a free license, a software package remains licensed under that license. You might have a point if it were possible for older versions of a software project to suddenly disappear upon the emergence of a new version, but that doesn't happen. |
| dinotrac Feb 09, 2007 9:10 AM EDT |
Darren - Again, kudos. You are correct. The only folks who could actually make free software illegal to distribute are in the legislature, and no license can do anything about that. Methinks the "HORRIBLE SCREECHING END OF THE WORLD BAD DEAL" folks a very real danger with imagined goblins. The very real danger is that Novell could pass patented Microsoft code into free projects as patches, and, essentially, create software that could not be legally used or distributed by anybody but Novell and its customers. That is a matter of the technical cooperation agreement between the two companies, not the agreement not sue...except... It certainly reduces the burden of liability on Novell and its customers, and, with that reduced burden, the pressure to be diligent. |
| swbrown Feb 10, 2007 4:19 AM EDT |
> Free software projects, licensed under GPL v2, cannot be made illegal to distribute for all but one source. There is no way. So with the Microsoft / Novell deal, if Microsoft produces a patent it says GPLed software infringes, and starts suing people over it, yet Novell is still allowed to distribute due to the patent loophole they found and their agreement with Microsoft, what do you call that? Do you see the problem with that deal and the loophole, now? |
| Abe Feb 10, 2007 6:55 AM EDT |
Quoting:Free software projects, licensed under GPL v2, cannot be made illegal to distribute for all but one source. There is no way. IANAL, would care to enlighten us why not? If GPL3 says "You can't grant protection to one group of FOSS users. It is either all or none, otherwise you can't enter into an agreement that does, can't use, support, copy, modify, amend, distribute, or sell the software", wouldn't that be legal enough to nullify Novel-MS agreement? |
| bigg Feb 10, 2007 7:29 AM EDT |
> wouldn't that be legal enough to nullify Novel-MS agreement? I guess it would. It would also mean that if you install Linux on your mother's computer and that distribution is later found to violate a patent, Microsoft could take your mother to court (think RIAA) and you wouldn't be able to offer her any help, financial or otherwise, unless you are willing to offer the exact same help to anyone else in the world that Microsoft decides to sue. |
| Abe Feb 10, 2007 9:59 AM EDT |
Quoting:It would also mean that if you install Linux on your mother's computer and that distribution is later found to violate a patent..,Excuse me for failing to see your point; better yet, what is your point? Isn't that the situation we have right now for those who use non-Suse distro and consequently are not covered by MS's covenant? MS keeps claiming that Linux violates some of its patents. They never showed what, how, or where. It is all may be violating. Keep in mind that they also haven't even sued anyone either. To my knowledge, and IANAL, MS has a legal obligation to inform the originator of the distribution by outlining the patents violated. Violator(s) will either have to remove the violating patents, pay compensation, or tell MS to go suck an egg and sue. If a Linux distro is legally found in violation of such patten(s), then it has to remove them or compensate MS via an agreement. Most probably they would be removed because pattens would be against GPL3. This is the approach Red Hat chose. The burden is on MS. It has to show and prove that there is such a violation. If not, then they are full of hot air. MS is smart and clever, They don't want to sue their customers, at least not yet. So, they are offering a covenant to the takers of them , collecting $$$ easily for the time being to see how things develop. If there aren't many takers, they will have to take more drastic measures which might not be pretty for them. |
| swbrown Feb 10, 2007 10:57 AM EDT |
> If there aren't many takers, they will have to take more drastic measures which might not be pretty for them. This is Microsoft we're talking about. They'll just sell rights to enforce an infringed patent to someone like SCO and act innocent like they never thought the buyers would turn around and start suing every Free Software project / distribution / user / etc.. And let's face it, with the software patent system the complete and total disaster it is, it's almost guaranteed that their mass patent filing they've been doing for the last few years has resulted in large numbers of infringed trivial patents, especially when you consider they're even filing patents on things they /copied/ like with BlueJ. That's more than enough to start another SCO rolling. |
| bigg Feb 10, 2007 11:48 AM EDT |
> To my knowledge, and IANAL, MS has a legal obligation to inform the originator of the distribution by outlining the patents violated. If that were the case, the agreement would not exist, because MS is providing the users of Novell's products with a promise not to sue. What you are describing would mean MS could not sue Novell customers. |
| bigg Feb 10, 2007 11:50 AM EDT |
> This is Microsoft we're talking about. They'll just sell rights to enforce an infringed patent to someone like SCO and act innocent like they never thought the buyers would turn around and start suing every Free Software project / distribution / user / etc.. You might be right, but the Novell deal would not be the reason they would do that. |
| dinotrac Feb 10, 2007 12:46 PM EDT |
> To my knowledge, and IANAL, MS has a legal obligation to inform the originator of the distribution by outlining the patents violated. I am not a patent lawyer, but, as I understand, it works something like this.. If Microsoft actually wishes to collect damages, they must provide actual notice of the infringement. In fact, Microsoft must provide a notice specific enough that a distributor (or whomever) could take MS to court and seek a declaratory judgment of non-infringement. The alleged infringer is thus presented with an opportunity to settle the issue, stop infringing, or whatever else. Once actual notice is supplied, however, the infringer risks triple damages for willful infringement. So far, I haven't seen any claims. |
| Jack_ Feb 10, 2007 2:09 PM EDT |
I want to clear up something I believe I may have created a misunderstanding about, in my large post, I talked about "violation", as I read the number of post following, it seems I may have made people believe I was talking about violations of Microsoft patents; if so, I was not. |
| Abe Feb 10, 2007 6:46 PM EDT |
Dino,
Thanks for clarifying the issue in regards to the patents issue.Quoting:If that were the case, the agreement would not exist, because MS is providing the users of Novell's products with a promise not to sue. That is exactly what the GPL3 is intended to do. Basically, it will nullify the patent agreement between MS & Novell and for any GPL3 but not GPL2 software. Quoting:What you are describing would mean MS could not sue Novell customers.what I am saying is this: Right now, because of the agreement, MS can't sue Novell Suse customers. If the the agreement didn't exist, MS could sue anyone (including Novell Suse's users) if they can prove that Linux is in fact infringing MS patents. |
| bigg Feb 11, 2007 11:52 AM EDT |
> If that were the case, the agreement would not exist, because MS is providing the users of Novell's products with a promise not to sue. Because Microsoft is the one promising not to sue, the promise not to sue would prohibit Novell from distributing GPL3'd software. It would do nothing to prevent Microsoft from promising not to sue. Nothing in GPL3 can force Microsoft to do anything if they don't distribute GPL software. Microsoft could eliminate any open source competitor by simply promising not to sue. > If the the agreement didn't exist, MS could sue anyone (including Novell Suse's users) if they can prove that Linux is in fact infringing MS patents. But your proposed wording would prevent *anyone* from providing patent protection. That's the problem. Patent protection is a *good* thing because it protects Linux users and doesn't restrict anyone. It's not possible to write the license to prevent only Novell from distributing Linux. |
| dinotrac Feb 11, 2007 7:15 PM EDT |
> Microsoft could eliminate any open source competitor by simply promising not to sue. Poor drafting could result in precisely that outcome, and, given what the FSF is trying to do, there may no such thing as good drafting. I'm glad I'm not trying to write the fool thing. |
| swbrown Feb 12, 2007 1:52 AM EDT |
> Poor drafting could result in precisely that outcome, and, given what the FSF is trying to do, there may no such thing as good drafting. I'm glad I'm not trying to write the fool thing. I think given the best lawyers in the business for multiple multi-billion dollar companies who have a lot on the line are involved in the process this time around, it should be fine. :) I can't imagine they'd attempt to collectively suicide. I wonder why almost no one got all panicked the last few times the licenses were modified, seeing as there was far less scrutiny. Media frenzy? Vested interests in Novell? Microsoft astroturfing? People who joined the party late and haven't learned its values? All of the above? |
| DarrenR114 Feb 12, 2007 5:24 AM EDT |
Since this thread has gone a few posts since my last - let me just interject something about prior art and GPL v2 licensed code. If MS were to get a patent *after* the release of software code under GPL v2, and said patent was infringed by said code, the aforementioned patent would be nullified under the principle of "prior art". So, it's like Dino has said: the only thing we really have to be wary of, and this is something that has always been a problem even prior to the MS-Novell deal, is developers, employed by companies with patent covenants, inadvertently introducing code to the general public that falls under patents which are not licensed to the public at large. This is one of the things that SCO was/is trying to claim in their suit against IBM - they have claimed that one of the contributors to the kernel, who was employed by Caldera at the time, contributed trade-secret code without company permission. Sun has a patent covenant with MS, similar to the MS-Novell covenant. There is as much to be wary of regarding contributions from Sun developers to Java and OpenOffice.org as there is with contributions from Novell developers. |
| dinotrac Feb 12, 2007 5:59 AM EDT |
>I wonder why almost no one got all panicked the last few times Hmmm. Let's see. Maybe, just maybe, it had something to do with the fact that GPLV2 came out in 1991 (within a year of V1) and it really didn't matter for crap. |
| dcparris Feb 12, 2007 9:32 AM EDT |
I can definitely see the widespread attention on the GPL. In fact, I think the hoopla is great, however the license finally winds up (no such thing as bad publicity). I can even appreciate the spirited debate - that is a much needed element in any arena. If nothing else, it has certainly helped to clarify where people stand, and may have shed light on the Free Software movement's underlying philosophy. It's fantastic! |
| jdixon Feb 12, 2007 9:35 AM EDT |
> the aforementioned patent would be nullified under the principle of "prior art". Yes, but most likely only after an expensive court battle. Most people and many smaller corporations can't afford that. They'll lose by default. Not everyone has a Google or IBM backing them up in the courtroom. |
| DarrenR114 Feb 12, 2007 9:43 AM EDT |
> Yes, but most likely only after an expensive court battle. Most people and many smaller corporations can't afford that. They'll lose by default. Not everyone has a Google or IBM backing them up in the courtroom. After seeing what happened to the RIAA recently, that's proving less true. And such a situation is no different before and after the advent of the MS-Novell covenant. In other words, there was nothing pre-covenant that prevented MS from doing what you fear here. The MS-Novell covenant has nothing to do with this scenario of MS launching suits based on submarine patents. |
| jdixon Feb 12, 2007 10:13 AM EDT |
> After seeing what happened to the RIAA recently, that's proving less true. That a gamble most people probably don't want to take. > And such a situation is no different before and after the advent of the MS-Novell covenant. I didn't say it was. My comment was more about the state of the patent system in general than about the Microsoft/Novell deal. |
| DarrenR114 Feb 12, 2007 10:23 AM EDT |
>I didn't say it was. My comment was more about the state of the patent system in general than about the Microsoft/Novell deal. That idea I agree with. The patent system is very organic in nature and will always need "fixing" just like any system of rules and regulations. As the environment they function in changes, the particular system needs to change or it will end up being irrelevant and overly cumbersome. |
| Abe Feb 12, 2007 11:02 AM EDT |
Quoting:But your proposed wording would prevent *anyone* from providing patent protection. That's the problem. Patent protection is a *good* thing because it protects Linux users and doesn't restrict anyone. It's not possible to write the license to prevent only Novell from distributing Linux. I believe I said "I Am Not A Lawyer" in my post, didn't I ? But you obviously didn't get my main point. Sorry, I can't be more clear than that. Quoting:Because Microsoft is the one promising not to sue, the promise not to sue would prohibit Novell from distributing GPL3'd software. It would do nothing to prevent Microsoft from promising not to sue.Who is talking about preventing MS? All I was talking about is preventing Novell, or any distributor or GPL3 software, from entering an agreement with another party who would grant selected covenant protection via a patent agreement. |
| bigg Feb 12, 2007 11:28 AM EDT |
> But you obviously didn't get my main point. Sorry, I can't be more clear than that. Well, I did get your point, and showed a difficulty with your proposed language. > Who is talking about preventing MS? All I was talking about is preventing Novell, or any distributor or GPL3 software, from entering an agreement with another party who would grant selected covenant protection via a patent agreement. But you have to write the language so that you have a legally enforceable restriction on only that type of agreement. That's the difficulty. There will be a ton of collateral damage if you are not careful. I don't see how you could, for instance, impose restrictions on a negotiation between Novell and Microsoft that has nothing to do with GPL'd software. Their agreement was a payment in both directions for not suing about patent violations. Novell's patents are different from GPL'd software. |
| jdixon Feb 12, 2007 11:40 AM EDT |
OK, a quick question for the Microsoft/Novell deal bashers (of which I am one, but probably not for the same reasons as most of you). If all other details of the deal were the same, but rather than being part of the agreement, both companies had "independently" announced (with appropriate legally binding public statements) that they had decided not to sue each others customers, would the proposed changes in the GPL have any effect? Note that the effect of such announcements would be exactly the same as what we have now (and such announcements could easily have been arranged) but there would be no agreement in place concerning patents. How would the proposed GPL changes deal with such a case? |
| dinotrac Feb 12, 2007 12:26 PM EDT |
jdixon - I can see you understand the problem. |
| jdixon Feb 12, 2007 1:08 PM EDT |
> I can see you understand the problem. At least partially due to your excellent critiques on the matter. |
| Abe Feb 12, 2007 5:14 PM EDT |
Quoting:OK, a quick question for the Microsoft/Novell deal bashers (of which I am one, but probably not for the same reasons as most of you). If all other details of the deal were the same, but rather than being part of the agreement, both companies had "independently" announced (with appropriate legally binding public statements) that they had decided not to sue each others customers, would the proposed changes in the GPL have any effect?Jdixon, You are forgeting one important point, which is, the agreement involves and covers GPLed software specifically. Consequently, the GPL terms apply before and takes precedence over their agreement terms. GPLed software has its own license and whoever uses, copies, distributes sell it or whatever, can't do so unless they honor and abide by that license. What you are asking about is software developed and owned by Novell or MS, not GPLed software. You just can't ignore the GPL or replace it at random. Part of the money exchange was royalty payments from Novell to MS and according to MS lead lawyer, it was payment for MS IP in Linux. Here is a snippet Quoting:That may be, but the two principals in the deal have hardly been sending love letters to one another. Microsoft and Novell on November 2 announced the pact, under which Microsoft agreed not to sue Novell Linux customers for patent infringement, while Novell agreed to pay Microsoft royalties, among other provisions. You can read the rest here [url=http://news.com.com/Microsoft Novell deal a milestone despite squabbles/2100-7344_3-6158001.html]http://news.com.com/Microsoft Novell deal a milestone despit...[/url] |
| dcparris Feb 12, 2007 5:47 PM EDT |
> ...it was payment for MS IP in Linux Where is that stated in the article? That is not what the article says. It only says Novell paid royalties to Microsoft. They might be paying royalties on Tiddlywinks for all I know. And Ballmer? Believe a word HE says? C'mon! Surely you jest! I know what Microsoft thinks. But the article you point to - the very paragraph does not contain the information you claim it does. |
| Abe Feb 12, 2007 6:18 PM EDT |
Quoting:It only says Novell paid royalties to Microsoft. They might be paying royalties on Tiddlywinks for all I know.Don, The subject matter is Linux. What else would Novell be paying for? MS didn't win a suit against Novell to pay compensation of penalties, Novell didn't purchase anything from MS, why the payment then? How come the amount depends on the number of Suse Linux license and for the next so many years? If it walks like a duck...... it is a duck. Quoting:the very paragraph does not contain the information you claim it does. Microsoft agreed not to sue Novell Linux customers for patent infringement, while Novell agreed to pay Microsoft royalties, among other provisions. Read this statement multiple times. the paragraph was a sample, read the whole thing. The whole agreement revolves around Linux licensing. Interoperability and coordination are nothing more than a nice looking cover to hide what is hidden in the contract. At least that is what I believe. I guess time will tell. |
| dinotrac Feb 12, 2007 7:18 PM EDT |
>You just can't ignore the GPL or replace it at random. You didn't read his scenario very carefully, did you? He made no reference to GPL'd software. For that matter, he made no reference to patents. Let me offer a hypothetical not very different from the actual Novell-Microsoft deal: Microsoft and Novell come to an agreement not to sue each others customers. Period. No reference to software, hardware, patents, cute little doilies on the table tops. What then? Do you infer patent protection because you happen to know that Microsoft and Novell have bunches of patents? How do you do it without seriously impeding other companies who may wish to test the open-source waters? More to the point, how do you do it in a way that a judge will enforce? I would be mighty surprised to see a judge support the propostition that a software license can control all aspects of a business's operations. OTOH, if a judge were to do so, it would kill the use of GPL'd software in public corporations. In this era of Sarbanes-Oxley, what public corporation could afford the risk such a loose cannon license would impose? I'm not actually too worried, though. Either the FSF will come up with something workable or they will cease to matter. I'm betting on workable, but it wouldn't be the first time I've been wrong. |
| dinotrac Feb 12, 2007 7:20 PM EDT |
>What else would Novell be paying for? Umm, Abe, I don't know how to tell you this, but Linux is only one part of Novell's business. It isn't even the biggest part. I know that facts can be inconvenient, but wishing doesn't make them go away. |
| jdixon Feb 12, 2007 7:29 PM EDT |
> ...the agreement involves and covers GPLed software specifically... On Novell's end yes. But Novell would be making no agreement concerning GPL'ed software. They would be agreeing not to sue users of Microsoft Windows and Office. Thus, they would not be infringing the proposed GPL 3 license. Microsoft's agreement would concern GPL'ed software (namely SuSE), but since they won't have any GPL 3 code to distribute, they won't care. All of the GPL'ed code Microsoft has released has been GPL 2, and I think we can expect it to remain that way. So, how would either party be violating the proposed GPL 3? And if they wouldn't, is there any way to prevent this? I can't think of one. I'm not sure it's even a good idea to try. There's a legal saying that goes something like "fringe cases make bad law". I think that's what we're dealing with here. Dino probably knows the exact quote. > Part of the money exchange was royalty payments from Novell to MS and according to MS lead lawyer, it was payment for MS IP in Linux. As far as we know, the agreement does NOT specify what the payments are for. Microsoft may say whatever they want, but if it's not in the agreement, then it's not legally binding. Since Novell disagrees, I think it's safe to assume those terms aren't in the agreement. |
| jdixon Feb 12, 2007 7:36 PM EDT |
> If it walks like a duck...... it is a duck. Abe, I agree, but I don't think a court would. Nor, given the facts as we know them, do I think they should. There is no valid legal reason to assume that the payments are for any particular purpose. Legally, they are merely an agreed upon exchange between the two companies. They could be because the Novell CEO has the hots for Ballmer for all we or the court knows (hopefully that thought doesn't cause everyone to lose their supper). |
| Abe Feb 13, 2007 5:03 AM EDT |
Quoting:You didn't read his scenario very carefully, did you?Oh yes I did and multiple times. He was removing Suse Linux from the picture even though the whole contract was about it. Hear me again, the contract was mainly about Linux, not interoperability nor virtualization like Novel & MS want us to believe. Quoting:Let me offer a hypothetical not very different from the actual Novell-Microsoft deal:No hypothetical is necessary when we are dealing with an existing contract. Quoting:How do you do it without seriously impeding other companies who may wish to test the open-source waters?You do it exactly what I stated before but with more appropriate language than I used. IANAL, but Lawyers can do that. Quoting:it would kill the use of GPL'd software in public corporations.No it wont. Quoting:I'm betting on workable, but it wouldn't be the first time I've been wrong.I am glad you still have some confidence in FSF. Quoting:Umm, Abe, I don't know how to tell you this, but Linux is only one part of Novell's business. It isn't even the biggest part.Come on Dino, we both know that the old Novell products are D E A D dead. What is left of it is maintenance and support only. If Novell didn't purchase Suse, they would have been dead already. Quoting:but since they won't have any GPL 3 code to distribute, they won't care.May be it is good idea to read the previous posts. I am not arguing GPL2, I am taking about GPL3 to fix the loop hole in GPL2 that MS & Novell are taking advantage of. Both RMS & Moglen already said that. Sure they don't care about GPL2 but they will care when the code is GPL3. Quoting:So, how would either party be violating the proposed GPL 3?Read again the text I proposed before. "You can't enter an agreement that involves patents and GPLed Software", period. GPLed software has a license and it supersede any agreements involving GPLed software between any companies. It is as clear as a whistle. Quoting:On Novell's end yes. But Novell would be making no agreement concerning GPL'ed software. They would be agreeing not to sue users of Microsoft Windows and Office. Thus, they would not be infringing the proposed GPL 3 license.You are saying "Novell agrees not to sue Windows user, in return, MS agrees not sue Linux Users", fine. But the agreement involves GPLed software, you just can't do that because of the above restriction. Is that hard to understand? why wouldn't stand in court? |
| jdixon Feb 13, 2007 5:11 AM EDT |
> I am not arguing GPL2, I am taking about GPL3 to fix the loop hole in GPL2 that MS & Novell are taking advantage of. Both RMS & Moglen already said that. And I'm pointing out that there doesn't have to be any agreement in place to exploit this "loophole". > "You can't enter an agreement that involves patents and GPLed Software", period. There doesn't have to be an agreement. > You are saying "Novell agrees not to sue Windows user, in return, MS agrees not sue Linux Users", fine. No. I'm saying that they each, INDEPENDENTLY, state that they won't sue each other's users. > But the agreement involves GPLed software, you just can't do that because of the above restriction. In my scenario, THERE IS NO AGREEMENT. Now, you know and I know that such independent statements won't happen without backdoor negotiations. Fine, prove that in court. Without such proof, there is no agreement to attack, but we'd be in the same situation we are now. |
| Abe Feb 13, 2007 5:31 AM EDT |
Quoting:And I'm pointing out that there doesn't have to be any agreement in place to exploit this "loophole".The contract exists already. A "gentlemen" hidden agreement, MS wouldn't do it, Novell wouldn't do it. They can't trust each other. They don't want it hidden. If they declare it in the open, then it is legal and could stand in court. Quoting:There doesn't have to be an agreement.Do we still live on plant Earth? Quoting:No. I'm saying that they each, INDEPENDENTLY, state that they won't sue each other's users.Come on now, let us be realistic. We are taking about business here. Who would believe either of them? Quoting:Now, you know and I know that such independent statements won't happen without backdoor negotiations. Fine, prove that in court. Without such proof, there is no agreement to attack, but we'd be in the same situation we are now.Novel & MS going underground? What is the use? The whole purpose and benefit of it is to let their customers about it. |
| dinotrac Feb 13, 2007 5:32 AM EDT |
>Oh yes I did and multiple times I'm sorry. I misunderstood you, then. You read and simply decided to ignore it. I must admit, your faith in lawyers is impressive. Having spent a lot of time around a lot of lawyers (including the one who drafted the lotus 1-2-3 license), and having been one myself, I am a bit less worshipful than you. |
| jdixon Feb 13, 2007 5:42 AM EDT |
> A "gentlemen" hidden agreement, MS wouldn't do it... There's nothing gentlemanly about it. And if it would put to screws to Linux, I guarantee you Microsoft would jump at the chance. > Who would believe either of them? Nobody with any sense ever believes Microsoft, but it doesn't matter. An official document declaring such a position would be legally binding on the corporation. > The whole purpose and benefit of it is to let their customers about it. And how would such independent announcements not achieve that? |
| dinotrac Feb 13, 2007 6:16 AM EDT |
jdixon - A legally binding agreement requires consideration from both sides. Consideration is a legal term, but, essentially, it means both sides must put something into the pot. So..they would need an agreement that customers could see and understand. A mutual agreement not to sue would handle the consideration nicely, as each is offering up a promise. But..it would in no way have to reference any patents, any software, much of anything to be binding. |
| Abe Feb 13, 2007 6:24 AM EDT |
Quoting:There's nothing gentlemanly about it. And if it would put to screws to Linux, I guarantee you Microsoft would jump at the chance.No doubt about it. And as a matter of fact, MS are already doing that as Jeremy Allison said. And they are collecting fees for it. But the fact of the matter is, there is a contract in place between MS & Novell. MS offered Red Hat the same deal as Novel but was rejected. MS also said that they will go it alone whether Red Hat agrees to it or not. So they can and those who are willing to pay, it is up to them to do so. It is their money. Can any one stop another from being stupid? There is nothing that can be done about it unless someone with enough money wants to take them to court for racketeering. Quoting:And how would such independent announcements not achieve that?it sure can achieve that, but it wouldn't be as effective as when Novell gives it credibility like they did by entering the agreement. Hay, I am gland we are having this discussion and I hope, FSF, RMS, Moglen are reading this to use it in putting an iron clad GPL3 together. I believe we ought to sacrifice some for the survival of the whole (FOSS). |
| jdixon Feb 13, 2007 6:55 AM EDT |
> it wouldn't be as effective as when Novell gives it credibility like they did by entering the agreement. Agreed. But it would still give us the same situation we have. > Hay, I am gland we are having this discussion and I hope, FSF, RMS, Moglen are reading this to use it in putting an iron clad GPL3 together. Well, that was my point. Are the current proposals going to be effective or not? Is an effective solution even possible? The FSF has to consider the possibility that a determined effort to undermine the GPL by someone willing to break the law to do so is something that's outside the scope of the license. |
| Abe Feb 13, 2007 7:41 AM EDT |
Quoting:Agreed. But it would still give us the same situation we have.Not exactly, now there is still a contract in place. If that didn't exist, yes we would be in the same situation like always was. Quoting:Is an effective solution even possible?Yes there is, but we have to strike a balance to make sure we don't lose more than we gain. The bottom line is, Novell shouldn't have made the agreement. And in a way, it is a good thing they did because it brought up many issue that are better addressed now than later. Quoting:to do so is something that's outside the scope of the license.There are other areas that need to be addressed in the GPL3 license that weren't addressed in GPL2. Entering a patent agreement like the one between Novell-MS is one example. |
| dinotrac Feb 13, 2007 8:03 AM EDT |
>Yes there is, but we have to strike a balance to make sure we don't lose more than we gain. Yes sir. > Entering a patent agreement like the one between Novell-MS is one example. The Novell agreement is a little trickier than it looks on the surface, and hints as to why a satisfactory license solution may be elusive. In a way, it wasn't exactly a patent agreement. No licenses were specifically named, and neither side claims to be using the others' patents. I don't recall either side even claiming that they want to use the other's patents. A patent agreement normally covers use of patents. This situation isn't very far removed -- at least in terms -- from my hypothetical of two companies saying "Let's be friends and not sue each other's customers". The agreement does have a hook that a license could work with, and that is the per-copy payments. It seems reasonable to expect that a license could prevent that. It also seems to me that Mcrosoft and Novell could have worked out the exact same agreement, with nearly identical financial terms, that omitted per-copy payments placed themselves outside of what the FSF could reasonably draft against. |
| Abe Feb 13, 2007 8:15 AM EDT |
Quoting:The Novell agreement is a little trickier than it looks on the surface, and hints as to why a satisfactory license solution may be elusive.that is why I strongly take it against Novell but not MS. MS is what it is, but Novell is supposed to be a FOSS user, participator, advocate and supporter. They intentionally made it so opaque, vague, and elusive. |
| bigg Feb 13, 2007 9:04 AM EDT |
> In a way, it wasn't exactly a patent agreement. I view this as Novell providing patent protection to its customers. I honestly don't know the answer to this, but wouldn't GPL 3 have to be written in such a way as to prevent patent protection? How would you write a license in such a way that you don't eliminate all forms of patent protection? Wouldn't such a license require that all companies using Linux are on their own if they get sued, such that Microsoft could threaten a suit (directly or indirectly as with SCO) against any small business using Linux, and that small business would be on its own? |
| dinotrac Feb 13, 2007 9:53 AM EDT |
>ut wouldn't GPL 3 have to be written in such a way as to prevent patent protection? The question is how do you do that without becoming unusable? It certainly must create in businesses the image of a bunch of hippie/commie wackos that anybody would see evil in seeking to protect your business against suit by a nasty animal like Microsoft. |
| swbrown Feb 13, 2007 11:46 AM EDT |
> It certainly must create in businesses the image of a bunch of hippie/commie wackos that anybody would see evil in seeking to protect your business against suit by a nasty animal like Microsoft. So what do they think about a covenant that can be canceled at any time, isn't perpetual, expires in a couple years, isn't transferable, and implies guilt? Or are businesses routinely in the habit of paying for nothing but liability? Btw, the 90's ended a few years ago, as did Microsoft propaganda of us being unamerican, cancerous, communist hippies. Today, we have the previously unbelievable reality of the likes of Sun's CEO gushing about the GPL3. Times have changed. |
| dinotrac Feb 13, 2007 1:19 PM EDT |
swbrown - Ummm.... From a PR perspective, telling business execs that you are determined to keep them from protecting their business is not a good way to win friends and influence people. And..WRT Sun's CEO... If he's gushing, I'm afraid. |
| dinotrac Feb 13, 2007 1:28 PM EDT |
swbrown - Went back to the report on Sun making nice with GPLV3. Hmmmm. They are dual-licensing. They already indemnify their customers. They already have technology licensing agreements with Microsoft. They already have received hundreds of millions of dollars from Microsoft. For them, GPLV3 makes a great wedge. |
| swbrown Feb 14, 2007 9:43 PM EDT |
> From a PR perspective, telling business execs that you are determined to keep them from protecting their business is not a good way to win friends and influence people. So how do you win friends and influence people by telling them they're now paying the royalty fee on each copy for an effectively non-binding defense that's likely a liability? I'd think to 'win friends' you'd have to /actually/ protect your customers, not force them to buy snake-oil. The latter seems kinda abusive. Also, 'from a PR perspective', it probably doesn't look all that great when negotiating a deal to have to answer questions as to why many of your 'suppliers' currently see you as a pariah. I'd imagine for the client it'd be a bit like walking through picketing teamsters to hire a shipping company. > For them, GPLV3 makes a great wedge. He's planning to make Java, their crown jewel, available by it in addition to its current licenses, and wants OpenSolaris to go the same way, which certainly speaks to his confidence that the GPL3 won't eat his babies. And what extremely valuable (tasty? This analogy kinda breaks down) babies they are. The ideology isn't being hidden in a back room, and multi-billion dollar corporations are ok with it. Times have changed. |
| dinotrac Feb 14, 2007 11:25 PM EDT |
>o how do you win friends and influence people by telling them they're now paying the royalty fee on each copy for an effectively non-binding defense that's likely a liability? What do tangerines have to do with carp? |
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