Open Source Weblog

The GPLv3 is a license, it is up to Novell to decide if they (will/can) abide by it's terms, they don't have to (they just don't get access to all that Free code they have been reselling for the last few years - their only profitable products, btw).

FSF has nothing to do with that, it's up to Novell (and MS).

Could Microsoft not argue that the FSF has gone out of its way to deliberately restrict Microsoft's ability to do business with other vendors? I'm not saying it would be right to argue that, I'm just theorizing.

A company certainly can't be bound by the terms of a license that it hasn't agreed to be bound by.

It's simple, once the GPL v3 applies, MS can voluntarily choose not to distibute any code covered by it. If that's what MS chooses to do, then it won't be bound by the GPL v3. But if MS voluntarily decides to distribute code covered by GPL v3, then it will have voluntarily decided to be bound by those terms.

No-one is twisting MS's arm - it doesn't have to be bound by GPL v3 unless it chooses to.

Matthew, it would be an interesting argument to make: "You honor, these OSS people are restricting our right to have a third company distribute the software that belongs to the OSS developers to our customers in a way we like. No, it doesn't belong to us." And if they started bringing up how the license is affecting the customer, it might be interesting to bring up Microsoft EULAs.

Microsoft can not argue that the FSF is restricting its ability to do business with anyone. There is nothing in any version of the GPL that would prohibit Microsoft from doing another deal like the one they did with Novell. But it will simply not gain from such a deal what it had hoped for. That is not the FSF's fault. No court of sufficient insight will buy into such an argument because the legal ability of making deals is seperate from the business ability of making profitable deals which is not guaranteed by the law.

Microsoft has just wasted hundreds of millions of dollars on FUD with a completely inefficient campaign. There are no legal remedies for bad business transactions such as this. They can book the deal as a loss and will save some income tax. That's it.

Novell, on the other hand, has just received a one time payment for betraying the hands that feed it. As a response Novell's customers are walking out in droves. Look at the analysis of Novell's income statement. It is pretty obvious that Novell's management is already signaling to the community that it got the message and that it is asking for forgiveness. Novell has a pretty good hand in that regard: once they succeed in killing SCO, which they will, the community will probably accept an apology by Novell's management if it is followed up by the right next moves.

Microsoft, on the other hand, will not back out of this deal. Their best chance of getting out of their own mess now is to be silent about it. If they sue people for patent violations they will see their enterprise customer base collapse. Then they will be the makers of an overpriced second-rate operating system that they will have to dump on low end PC retailers for pennies. GPL 3 pretty much makes sure that patent allegations will be inneffective and a patent war will simply destroy software patents at the core because Microsoft does not even seem to own much but junk patents. The resulting meltdown of investor confidence in software IP and the new case law will all but eliminate software patents in the future.

In a way the free software world could only be very thankful for Microsoft driving itself into this concrete wall if it choses to do so. And we can be sure that not many people would go to their funeral.

It is difficult to see how Microsoft can spin itself as a victim in court. It is quite obvious to anyone who looks at the facts in detail that the Novell/Microsoft agreement is an elaborate scheme to breach the intent of GPL2 by exploiting a loophole in it. GPL3 is no different in terms of patent requirements as GPL2 except that it fixes the loophole. What is more there are what seem to be anti-trust violations and interference in business in Microsoft's conditions set out in the agreement with Novell, namely it attempts to control how open source developers in other companies should be renumerated and employed. Microsoft's patent protection racket also looks like an Al Capone style protection racket, and Microsoft may end up being prosecuted for it. If Microsoft attempts to play the victim in court, it is in for a hiding.

Matthew, I don't think antitrust and competition law can come into play against the FSF because the GPL ensures the ultimate cost of software code is 0 dollars. It's all up to Novell whether they want to take in GPLv3 code.

GPL is a license not a contract. GPL2 and GPL3 are separate licenses. If one accepts the GPL3 license it does not affect the GPL2 license. If one uses GPL2 licensed software you abide by the GPL2 license. If you use GPL3 licensed software you abide by the GPL3 license.
No problem! However, you don't get to use GPL3 software under GPL2 terms. If you decide you don't like the license terms your are completely free to abandon the license and of course you loose your rights to use the covered software in the area of distribution and distributing modifications but not just using the software. You get to keep the software.
What problem?

> Can the company be held to a license
> that did not exist when it made its
> agreement with Novell?
Yes and no. Yes, when Novell decides to include GPL3-licensed Code. But that is something, Novell and Microsoft have to decide. They have four choices:
A: Novell refrains from using GPL3-licensed code.
That would slowly cut off Novell from future developments elsewhere, in addition to constantly growing incompatibilities with the rest of the Linux-world.
B: Dissolve the contract and go separate ways.
C: Microsoft accepts, that it has to give away the relevant patents.
D: Microsoft exchanges the vouchers to time and product-version limited ones, essentially preventing them from being used to buy a product containing GPL3-licensed code.

Regards
Nohab.

"...Win or lose, any legal challenge could tie up the progress of the free software movement for a long time..."

I'm very sorry, but i disagree.

SCO attempted to throw a spanner into F/OSS development - and failed miserably.

SCO are on their last moments of agony now, while buisness and private uptake of GNU/Linux has grown exponentially.

If Microsoft tries to donk this out in court, it may be annoying for FSF, but it will in no way halt the growth of F/OSS. A courtcase is nothing but a stone in the stream. It's there, but everything floats past it anyway.

Yours truly -
Kim 'The_Pirate'

I don't think it can be said to be going out of it's way to deliberately restrict M$ ability to do business with other vendors. This is because the GPL3 rewrite process was well on it's way when the M$/Novell deal was announced, and it is clear in RMS's prior statements that the spirit of the the GPL is what is important. The M$/Novell deal was clearly against the spirit of the GPL.

Microsoft has grown into an abusive monopolist. The victum status is a shame the courts will see through

"Could Microsoft not argue that the FSF has gone out of its way to deliberately restrict Microsoft's ability to do business with other vendors?" <-- that's exactly what Microsoft do to their competitors so I say sucked in !

Having said that, GPL3 would only restrict them from trying to do dodgy deals with F/OSS related companies, they can still do whatever the hell they want with business using closed source.

Microsoft are scared to death about F/OSS and since Linux and F/OSS aren't owned by any one person Microsoft can't directly buy them out, bribe, or anything else so they're going for the same thing they always do when they're not getting what they want - vague patent threats, then they'll tie it up in court for years and make the defendant waste lots of money in the process.

Thanks for all your comments. I agree, no one is forcing MS to deal with the GPL, and to be clear, I am not saying that MS would have a case, but I think it would be an interesting argument:

"Your honour we entered into an agreement with Novell to improve interoperability and provide users with peace of mind with regard to potential legal risks. We did so in such as way that was beneficial to both companies' and their customers and in keeping with the letter of the GPLv2. Then the FSF re-wrote the forthcoming GPLv3 license with the specific intention of preventing us from striking similar patent deals with other open source vendors."

Anyone who's involved in FOSS can see that the Novell deal was designed to exploit a GPLv2 loophole and was against the spirit of the GPL, but I'm guessing a judge wouldn't care too much about the 'spirit' of the GPL.

It's all theoretical anyway, but let's face it, lengthy court cases have been built on much less...

Everyone in the entire world knows of the MS tactics...drag out the argument for as long as possible (this is normal for any case where you know the cost is far less than the end result...it works with smaller folks but the FSF is not going away).

I am half guessing that FSF are waiting for the correct time to challenge MS on the patent issues...the GPLv3 is just another tool to show the judge when this finally goes to court...I think that the FSF will preempt MS and throw down the gauntlet first.

Also lets remember that the Linux kernel/Open office guys will have gone through their code with a fine tooth comb and know exactly what parts Microsoft are trying to argue are their patents which is why the open source community are so confident about the FUD...Microsoft definitely have egg on their face at the moment but the open source community must tread carefully...Money and politics can bite you in the ass far greater than any law you can read out.

Get ready for some rule changes to go through congress before Microsoft makes its next move...FSF need to move now...sitting back is just going to help Microsoft!

Microsoft doesn't have much of a legal leg to stand on. Most of the comments above have nailed this aspect of the MS-FSF-Novell situation accurately. Whats interesting for me in this scenario is how it will affect Novell in the end. MS will survive because it is MS; the FSF will survive for the same reason (FOSS is much, much bigger than the FSF). Novell is however, looking increasingly like being SOL.

I'm hoping to blog on this soon at http://decodingliberation.blogspot.com - in response to one of the comments above how about the ability to make deals is a separate legal concern from that of making profitable deals.