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Re: Eben mused: "Maybe it will turn out that [Novell and Microsoft] have

From: Alexander Terekhov
Subject: Re: Eben mused: "Maybe it will turn out that [Novell and Microsoft] have cleared the barrier by a millimetre"
Date: Wed, 08 Nov 2006 14:52:05 +0100

The context is this:

Novell-Microsoft partnership faces GPL hurdle
By Tom Sanders,      6 November 2006 09:32 AEST      Operating Systems  

The patent cross licensing deal that Microsoft and Novell unveiled last
Thursday will be incompatible with the GPL3 licence and is likely to be
incompatible with the current GPL2 licence, alleged Eben Moglen, a law
professor and open source activist.

Section seven of the current general public licence (GPL2) prohibits
people or corporations from distributing the GPL code if they have
entered into any agreements that contradict the conditions of the

"If you cannot distribute so as to satisfy simultaneously your
obligations under this Licence and any other pertinent obligations, then
as a consequence you may not distribute the Program at all," the licence

The provision for instance prevents Novell from making it mandatory for
users to pay a license fee for its Linux distribution if Microsoft would
have required that as part of the patent agreement.

Microsoft and Novell on Thursday unveiled a broad ranging partnership
around Novell's Suse Linux distribution. Among things, the two companies
have signed a patent cross license deal that will protect users and
developers of Suse against patent claims from Microsoft.

The two also vowed to work on interoperabiltiy between the two operating
systems and Microsoft will distribute up to 70,000 copies of Suse to its
customers through a coupon program. 

Moglen in an interview with called upon Novell to explain in
detail how it plans to honour the GPL while satisfying the terms of its
licence agreement with Microsoft.

"They need to show affirmatively that the terms of their arrangement
with Microsoft do not impact the freedoms that they must be able to pass
along under the GPL," said Moglen.

Novell hasn’t yes disclosed the exact details of its legal agreement
with Microsoft. But company spokesperson Bruce Lowry claimed that the
partnership doesn't violate the GPL.

"The patent agreement signed by Novell and Microsoft was designed with
the principles and obligations of the GPL in mind," Lowry told He added that the company is working on a document that
explains the deal more in detail and will provide legal background.

But even if the deal is allowed by the current GPL, it won't meet the
requirements of the forthcoming GPL3, of which Moglen is one of the
authors. The licence is slated for release in the coming months.
Although the Linux kernel will stay under the GPL2, most of today's GPL
applications are expected to switch over to GPL3, including many parts
that ship as part of Novell's Suse Linux distribution.

The upcoming revision of the licence explicitly prohibits distributors
from asserting any patent claims against open source developers. The
Microsoft-Novell agreement meanwhile limits its patent pledge to
non-commercial developers and developers contributing to the project.

"Maybe it will turn out that [Novell and Microsoft] have cleared the
barrier by a millimeter. But then they will not clear GPL3 by a
millimeter," said Moglen.

Numerous people in the open source community applauded the partnership
because its eliminated the threat of Microsoft suing open source
developers and vendors for patent infringement claims.

Stuart Cohen, chief executive of the Open Source Development Labs (OSDL)
last week told that: "Microsoft is now saying that it is OK
to run Linux.".

Dave Dargo, chief technology officer for Ingres, on his blog wrote that
the deal "will accelerate the adoption and, therefore, the success of
open-source within the commercial enterprises".

Moglen however charged that the deal will make thing worse instead of
better. By paying Microsoft a license fee for each copy of Suse Linux
that is shipped, Novell is providing the firm with additional revenues.
But this will extent the life of a failed business model that is based
on proprietary code.

"This is giving Microsoft a new lease on life," Moglen said. "Microsoft
is about to suffer a company ending defeat."

"The correct answer to Microsoft is to tell them: 'Your patents are
worthless. Go away.'"

Moglen also said that Microsoft's forthcoming Windows Vista operating
system will fail in the market place and charged that Microsoft's Office
software is "dying".



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