Moglen: How we'll kill the Microsoft Novell dealWe'll fight them on the
By Andrew Orlowski in New York ? More by this author
Published Monday 20th November 2006 18:30 GMT
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If Microsoft is seeking for a courtroom collision with the world of free
software, it may be disappointed.
Novell's decision to accept $348m from Redmond in return for a patent
agreement covering its SuSE Linux distribution won't be seen on CourtTV
anytime soon, we learn. Instead it's adopting the stealthier strategy of
changing the licensing terms under which Novell, which uses the
community's code, receives the materials for its commercial product.
The Free Software Foundation's attorney Eben Moglen has been reticent
since the deal was announced - until now. He told us, when he caught up
with him this weekend in his office at Software Freedom Law Center the
weekend, that he couldn't be drawn on specifics and was subject to NDAs.
But he argued instead that a strengthening of the General Public License
that governs software libre would make such litigation unnecessary.
"Our strategy is to use GPL 3 against the deal - we're not going to vary
that strategy," he told us.
"We're going to make the deal not tenable and we urge Microsoft to back
away as gracefully and as quickly as possible from a deal that won't
The tool chain required to build so much free software, including the
Linux kernel, will almost certainly adopt GPL 3. While the Linux kernel
is licensed under GPL 2, and Linus Torvalds has indicated his personal
intention to stay with the older version, it's difficult to envisage a
licensee such as Novell being able to distribute a product it can't
build in binary form.
And while the GPL 3 has been characterized by its critics as a long
laundry list of grievances, Moglen suggested that consensus on the
important elements is at hand.
"Our further strategy is to finish GPL 3 in a way which gives us, in the
free world, what we must have, and which is otherwise respectful of the
needs of people who use the free world's products in whatever legitimate
way they do them.
"We believe agreement on all the major issues is now within reach. We're
going to publish a last-call draft very soon, that will show agreement
has been reached with most of the major parties on all the major issues,
and now it's time to finish the license and put it in place, and get the
benefit of the protection that it accords us - at a time when the
protection is really needed."
So how will adopting GPL 3 torpedo the Novell-Microsoft agreement?
Moglen told us:
"Suppose GPL3 says something like, 'if you distribute (or procure the
distribution), of a program (or parts of a program) - and if you make
patent promises partially to some subset of the distributees of the
program - then under this license you have given the same promise or
license at no cost in royalties or other obligations to all persons to
whom the program is distributed'."
"If GPL 3 goes into effect with these terms in it, Novell will suddenly
becomes a patent laundry; the minute Microsoft realizes the laundry is
under construction it will withdraw."
But why use a contract upgrade rather than filing a lawsuit to scupper
the deal, which might produce a clearer result in the long term? Moglen
himself couldn't be drawn on specifics, but the view amongst free
(rather than open) strategists suggests that elements of the deal make
litigation undesirable - even if it is legally justified.
The Novell-Microsoft deal certainly shows Redmond's desire to draw a
line between the "free"and "open" communities. In an interview on
Friday, Bill Gates was effusive in his praise for the "purity" Richard
Stallman, the original author of the GPL.
Did the term "Open Source" mean anything, any longer?
"They're going to have to co-opt a new vocabulary," thought Moglen,
"because the old vocabulary just died on them."
"I agree with you. This was the week 'Open Source' ceased to be a useful
phrase because it denoted everything up to and including Microsoft's
attempts to destroy free. Language is subject to this problem. Since the
beginning of time uprising movements have taken pleasure in perverting
the language of criticism used against them by the ancien regime - the
'brave beggars' of the Netherlands, and Yankee Doodle, and the Whigs and
the Tories - it's all the same terms of dis-endearment turned into a
weapon. But the game is also played by modern propaganda in the other
direction - by turning lang into the property of the guy on top: Fox
News "Fair & Balanced (tm)".
"What Microsoft did to 'Open Source' was what Stallman always said could
be done to it: first you take the politics out, and when the veal has
been bleached absolutely white, you can cover it with any sauce you
like. And that's what Microsoft did, and 'Open Source' became the sauce
on top of Microsoft proprietarianism. And once that process has been
completed they have to go after the next vocabulary."
"So now they're going to try the hard work of cracking 'Freedom'. Free,
well that means stuff you don't pay for..."
Microsoft had always been very astute in its analysis, we suggested.
While the press focused on the open, or distributed nature of the
production process, Redmond identified the fact that the GPL was viral
as the real attack. "That's right. They understood the copyleft problem
well - and understood the GPL well. But they didn't want to talk about
the enemy because of the rule in American political campaigns that you
don't say the name of your opponent in case people remember it. They
don't do that anymore. They've dropped the mask," he suggested.
"What's happened is that "Open Source" has died as a useful phrase -
Free Software, the GPL, the FSF - all have become major stakeholders in
the industry in Microsoft's verbiage."
"Once you're a major stakeholder you don't go back to being a minor
stakeholder unless you go bankrupt - and we can never go bankrupt
because we have no business to lose.
"So if we're major stakeholder. now we stay that way until the end of
the chapter, and that's a problem for Microsoft." �