Open Source Weblog

While the latest draft of v3 still prevents a repeat of the patent deal between Microsoft and Novell, the FSF has decided it is in the best interests of the free and open source software movements not to outlaw the agreement itself.

“Microsoft made a few mistakes in the Novell-Microsoft deal, and GPLv3 is designed to turn them against Microsoft, extending that limited patent protection to the whole community. In order to take advantage of this, programs need to use GPLv3,” explained Richard Stallman in his essay explaining why developers should upgrade to v3.

“Microsoft's lawyers are not stupid, and next time they may manage to avoid those mistakes. GPLv3 therefore says they don't get a 'next time',” he added. “Releasing a program under GPL version 3 protects it from Microsoft's future attempts to make redistributors collect Microsoft royalties from the program's users.”

The FSF explained its reasoning further in the final call draft rationale (PDF):

“We believe we can do more to protect the community by allowing Novell to use software under GPL version 3 than by forbidding it to do so. This is because of paragraph 6 of section 11 (corresponding to paragraph 4 in Draft 3). It will apply, under the Microsoft/Novell deal, because of the coupons that Microsoft has acquired that essentially commit it to participate in the distribution of the Novell SLES GNU/Linux system,” it said.

“Microsoft is scrambling to dispose of as many Novell SLES coupons as possible prior to the adoption of GPLv3. Unfortunately for Microsoft, those coupons bear no expiration date, and paragraph 6 has no cut-off date. Through its ongoing distribution of coupons, Microsoft will have procured the distribution of GPLv3-covered programs as soon as they are included in Novell SLES distributions, thereby extending patent defenses to all downstream recipients of that software by operation of paragraph 6.”

Finally, in the discussion draft FAQ, the FSF spelt out how it has decided to deal with the Novell situation:

“We attack the Microsoft-Novell deal from two angles. First, in the fourth paragraph of section 11, the draft says that if you arrange to provide patent protection to some of the people who get the software from you, that protection is automatically extended to everyone who receives the software, no matter how they get it. This means that the patent protection Microsoft has extended to Novell's customers would be extended to everyone who uses any software Novell distributes under GPLv3,” it said.

“Second, in the fifth paragraph, the draft says that you are prohibited from distributing software under GPLv3 if you make an agreement like the Microsoft-Novell deal. This will prevent other distributors from trying to make other deals like it in the future.”

Given the lengths that the FSF has gone to explain its position and reasoning, it is somewhat surprising to see Novell insisting that “The terms of the last call draft suggest that the final version of GPLv3 will not interrupt our partnership with Microsoft.”

As Novell stated, “Nothing in the last call draft of GPLv3 suggests that the final version of GPLv3 will inhibit Novell’s ability to include GPLv3 technologies in SUSE Linux Enterprise, openSUSE, and other Novell offerings as these technologies become available.”

However, the company is also well aware that broad patent covenant as described by the FSF is clearly not what Microsoft signed up for. Novell admitted in the risk factors section of its recently filed 10-K that “Microsoft may cease to distribute SUSE Linux coupons in order to avoid the extension of its patent covenants to a broader range of GPLv3 software recipients”.

If that happens, it added, it “may need to modify our relationship with Microsoft under less advantageous terms than our current agreement, or we may be restricted in our ability to include GPLv3 code in our products, any of which could adversely affect our business and our operating results.”

Microsoft has not responded to a request for comment, however according to the Fortune article that revealed its 235 patents claim the company does not believe that its distribution of coupons for SUSE Linux Enterprise subscriptions makes it subject to the GPL.

It may have an argument on that point – at least enough of an argument to get the whole thing tied up in court for some time.