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Re: GPLv3 comedy unfolding -- "fate worse than death: ... Novell and Mic
Re: GPLv3 comedy unfolding -- "fate worse than death: ... Novell and Microsoft"
Wed, 28 Mar 2007 18:03:36 +0200
A software patent forbids the use of a technique or algorithm, and its
existence is a threat to all software developers and users. A patent
holder can use a patent to suppress any program which implements the
patented technique, even if thousands of other techniques are
implemented together with it. Both free software and proprietary
software are threatened with death in this way.
However, patents threaten free software with a fate worse than death: a
patent holder might also try to use the patent to impose restrictions
on use or distribution of a free program, such as to make users feel
they must pay for permission to use it. This would effectively make it
proprietary software, exactly what the GPL is intended to prevent.
Novell and Microsoft have recently attempted a new way of using patents
against our community, which involves a narrow and discriminatory promise
by a patent holder not to sue customers of one particular distributor of
a GPL-covered program. Such deals threaten our community in several ways,
each of which may be regarded as de facto proprietization of the software.
If users are frightened into paying that one distributor just to be safe
from lawsuits, in effect they are paying for permission to use the program.
They effectively deny even these customers the full and safe exercise of
some of the freedoms granted by the GPL. And they make disfavored free
software developers and distributors more vulnerable to attacks of patent
aggression, by dividing them from another part of our community, the
commercial users that might otherwise come to their defense.
We have added the fourth and fifth paragraphs of section 11 to combat
this threat. This subsection briefly describes the operation of the new
provisions. We follow it with a more detailed separate note on the Mi-
crosoft/Novell patent deal, in which we provide an extensive rationale for
Section 11, Fourth Paragraph. As noted, one effect of the discriminatory
patent promise is to divide and isolate those who make free software
from the commercial users to whom the promise is extended. This deprives
the noncommercial developers of the communal defensive measures against
patents made possible by the support of those commercial users. The fourth
paragraph of section 11 operates to restore effective defenses to the
targets of patent aggression.
A patent holder becomes subject to the fourth paragraph of section 11
when it enters into a transaction or arrangement that involves two acts:
(1) conveying a GPLv3-covered work, and (2) offering to some, but not all,
of the works eventual users a patent license for particular activities
using specific copies of the covered work. This paragraph only operates
when the two triggering acts are part of a single arrangement, because the
patent license is part of the arrangement for conveying, which requires
copyright permission. Under those conditions, the discriminatory patent
license is automatically extended to all recipients of the covered work
and works based on it.
This provision establishes a defense to infringement allegations brought
by the patent holder against any users of the program who are not covered
by the discriminatory patent license. That is to say, it gives all
recipients the benefit of the patent promise that the patent holder
extended only to some.
The effect is to make contributing discriminatory promises of patent
safety to a GPL distribution essentially like contributing code. In both
cases, the operation of the GPL extends license permission to everyone
that receives a copy of the program.
Section 11, Fifth Paragraph. The fourth paragraph of section 11 gives
users a defense against patent aggression brought by the party who made
the discriminatory patent promise that excluded them. By contrast, the
fifth paragraph stops free software vendors from contracting with patent
holders to make discriminatory patent promises. In effect, the fifth
paragraph extends the principle of section 12 to situations involving
collusion between a patent holder and a distributor.
Under this provision, a distributor conveying a GPL-covered program
may not make an arrangement to get a discriminatory patent promise from
a third party for its customers, covering copies of the program (or
products that contain the program), if the arrangement requires the
distributor to make payment to the third party based on the extent of its
activity in conveying the program, and if the third party is itself in
the business of distributing software. Unlike the fourth paragraph, which
creates a legal defense for targets of patent aggression, the consequence
for violation of the fifth paragraph is termination of GPL permissions
for the distributor.
Note on the Microsoft/Novell Deal
The business, technical, and patent cooperation agreement between
Microsoft and Novell announced in November 2006 has significantly affected
the development of Draft 3. The fourth and fifth paragraphs of section 11
embody our response to the sort of threat represented by the
Microsoft/Novell deal, and are designed to protect users from such deals,
and prevent or deter the making of such deals.
The details of the agreements entered into between Microsoft and Novell,
though subject to eventual public disclosure through the securities
regulation system, have not been fully disclosed to this point.20 [20
Lawyers employed by the Software Freedom Law Center, which is counsel to
the Free Software Foundation and other relevant free software clients,
were accorded limited access to the terms of the deal under a
non-disclosure agreement between SFLC and Novell. The reasons for delay
in the application of securities regulations requiring publication of the
relevant contracts are unrelated to the deal between Microsoft and
Novell.] It is a matter of public knowledge, however, that the arrangement
calls for Novell to pay a portion of the future gross revenue of one of
its divisions to Microsoft, and that (as one other feature of a complex
arrangement) Microsoft has promised Novells customers not to bring patent
infringement actions against certain specific copies of Novells SUSE
Linux21 [21 This is a GNU/Linux distribution, and is properly called SUSE
GNU/Linux Enterprise Server.] Enterprise Server product for which Novell
receives revenue from the user, so long as the user does not make or
distribute additional copies of SLES.
The basic harm that such an agreement can do is to make the free software
subject to it effectively proprietary. This result occurs to the extent
that users feel compelled, by the threat of the patent, to get their
copies in this way. So far, the Microsoft/Novell deal does not seem to have
had this result, or at least not very much: users do not seem to be
choosing Novell for this reason. But we cannot take for granted that such
threats will always fail to harm the community. We take the threat
seriously, and we have decided to act to block such threats, and to reduce
their potential to do harm. Such deals also offer patent holders a crack
through which to split the community. Offering commercial users the chance
to buy limited promises of patent safety in effect invites each of them to
make a separate peace with patent aggressors, and abandon the rest of our
community to its fate.
Microsoft has been restrained from patent aggression in the past by the
vocal opposition of its own enterprise customers, who now also use free
software systems to run critical applications. Public statements by
Microsoft concerning supposed imminent patent infringement actions have
spurred resistance from users Microsoft cannot afford to alienate. But if
Microsoft can gain royalties from commercial customers by assuring them
that their copies of free software have patent licenses through a deal
between Microsoft and specific GNU/Linux vendors, Microsoft would then be
able to pressure each user individually, and each distributor individually,
to treat the software as proprietary. If enough users succumb, it might
eventually gain a position to terrify noncommercial developers into
abandoning the software entirely.
Preventing these harms is the goal of the new provisions of section 11.
The fourth paragraph deals with the most acute danger posed by
discrimination among customers, by ensuring that any party who distributes
others GPL-covered programs, and makes promises of patent safety limited
to some but not all recipients of copies of those specific programs,
automatically extends its promises of patent safety to cover all
recipients of all copies of the covered works. This will negate part of
the harm of the Microsoft/Novell deal, for GPLv3-covered software.
In addition to the present deal, however, GPLv3 must act to deter similar
future arrangements, and it cannot be assumed that all future arrangements
by Microsoft or other potential patent aggressors will involve procuring
the conveyance of the program by the party that grants the discriminatory
promises of patent safety. Therefore, we need the fifth paragraph as
well, which is aimed at parties that play the Novell role in a different
range of possible deals.
Drafting this paragraph was difficult because it is necessary to
distinguish between pernicious agreements and other kinds of agreements
which do not have an acutely harmful effect, such as patent contributions,
insurances, customary cross-license promises to customers, promises
incident to ordinary asset transfers, and standard settlement practices. We
believe that we have achieved this, but it is hard to be sure, so we are
considering making this paragraph apply only to agreements signed in the
future. If we do that, companies would only need to structure future
agreements in accord with the fifth paragraph, and would not face problems
from past agreements that cannot be changed now. We are not yet convinced
that this is necessary, and we plan to ask for more comment on the question.
This is why the date-based cutoff is included in brackets.
One drawback of this cutoff date is that it would let Novell off from
part of the response to its deal with Microsoft. However, this may not be
a great drawback, because the fourth paragraph will apply to that deal.
We believe it is sufficient to ensure either the deals voluntary
modification by Microsoft or its reduction to comparative harmlessness.
Novell expected to gain commercial advantage from its patent deal with
Microsoft; the effects of the fourth paragraph in undoing the harm of
that deal will necessarily be visited upon Novell.
"FORM 990, PART II, LINE 25 - OFFICER COMPENSATION SCHEDULE
OFFICER NAME AND TYPE OF COMPENSATION SERVICES AND GENERAL
COMPENSATION: 116,875. 38,959."
-- SOFTWARE FREEDOM LAW CENTER, INC.
- Re: GPLv3 comedy unfolding -- "Next GPL3 Draft to be Released on Wednesday", (continued)
- Re: GPLv3 comedy unfolding -- "Next GPL3 Draft to be Released on Wednesday", Alexander Terekhov, 2007/03/26
- Re: GPLv3 comedy unfolding -- "FSF to tweak GPLv3 to bust up MS Novell deal", Alexander Terekhov, 2007/03/27
- Re: GPLv3 comedy unfolding -- "LWN: A new GPLv3 timetable", Alexander Terekhov, 2007/03/27
- Re: GPLv3 comedy unfolding -- "User Products", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Installation Information", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Ephemeral Propagation", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Inherently Unmodifiable Copies", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Network Access and Other Limitations", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Paracopyright", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Patents", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "fate worse than death: ... Novell and Microsoft",
Alexander Terekhov <=
- Re: GPLv3 comedy unfolding -- "Novell position on GPL3 draft", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "IBM's Mills Sounds Off On GPL, Free Software Foundation", Alexander Terekhov, 2007/03/29