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links for 2006-12-23

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  1. I think this comment from Federico hits the mark: “It was a pleasure to work with Jeremy when we were integrating support for Active Directory in the distribution.”

    ie, someone who works on Samba can hardly complain about people implementing support for proprietory Microsoft formats/protocols.

  2. With all due respect, James, I disagree. I think it comes down not necessarily to the deal, but some of the comments subsequent to it. It’s one thing to work w/ Microsoft on compatibility, it’s another to enter into a deal with a firm claiming that the platform you’ve devoted your career to is “an undisclosed balance sheet liability.” I’m not saying Allison is 100% correct in what he’s said, but I certainly understand and support his decision.

  3. Hmm, I guess I’ve been following the Office XML vs ODF argument to the exclusion of the IP indemnity/GPL spirit/letter thing. Ignoring the Microsoft posturing, since everyone knows that’s FUD, and if they really knew of an infringement they’d just sue already, I see the deal as more a form of insurance so that enterprises can quantify and reduce their risk. See also which offers basically the same thing and has Bruce Perens (“Novell is the new SCO”) on the board of directors, and issued a statement refuting Microsoft’s claims that Linux infringes patents – two years ago.

    Do I think Novell have handled the community reaction poorly? Yes, that’s pretty obvious. Do I think it violates the spirit of the GPL to treat all recipients of the code equally? Harder to say, as it’s not a patent license, and there’s already precedent (OSRM) in this area. Do I think it was the right decision for Allison? Ignoring everything above, Google is by far a better workplace than Novell, so on that basis alone, yes.

  4. James: hadn’t thought of the parallels b/twn this and OSRM. interesting – will have to ponder that further.

    “Do I think it violates the spirit of the GPL to treat all recipients of the code equally? Harder to say, as it’s not a patent license, and there’s already precedent (OSRM) in this area.”

    well, maybe. it seems very clear that it doesn’t violate the license itself, but as for the spirit? most observers i’ve spoken with say yes, and given that the FSF has stated publically that they expect GPLv3 to prohibit this sort of deal in future i certainly believe they think that. even if it’s not a patent license – which it’s not, you’re correct – it can still advantage one party over another despite the consistent licensing. that seems to subvert the original purpose, IMO.

  5. Let’s see what the GPLv3 language is:

    You receive the Program with a covenant from each author and conveyor of the Program, and of any material, conveyed under this License, on which the Program is based, that the covenanting party will not assert (or cause others to assert) any of the party’s essential patent claims in the material that the party conveyed, against you, arising from your exercise of rights under this License. If you convey a covered work, you similarly covenant to all recipients, including recipients of works based on the covered work, not to assert any of your essential patent claims in the covered work.

    Having a read of this, Novell would be free to make the same deal with Microsoft, but I’m not sure it would make any difference to the license if one of Novell’s customers conveyed the work, since the deal covers Microsoft’s patents, not Novell’s or the customers, and the language “that the covenanting party will not assert (or cause others to assert) any of the party’s essential patent claims in the material that the party conveyed” doesn’t bundle up the covenant that Microsoft has made not to assert its patent claims in the material that Novell conveyed. I hope I’m being clear here.

    I’m also not certain it’s against the spirit – the GPL also offers no warranty, but people can pay to receive one – and in the deal, there was no admittance of patent infringement. And as I say above, I’m not sure GPLv3 is effective against the deal. Of course, IANAL, and if the FSF’s desire is to make GPLv3 cause such deals to be worthless (by bundling up the guarantee not to assert patent claims made by third parties to downstream recipients) or prevent conveyance entirely, in the interests of eliminating/neutralizing software patents, then that’s their right.

    I guess what I’m saying is while the perception the deal has created is that Microsoft believes it has patent claims over Linux (or whatever other GPLv2 software, including the GNU stack, that Novell distributes), in the event that Microsoft sued successfully, or obtained an injunction against someone using Linux/GNU/GPLv2 software for patent infringement, Novell would not be allowed to distribute such software (section 7 of GPLv2 which I’m not going to quote here). However, Novell’s customers would be free to use the software (as GPLv2 says nothing about use), as Novell has bought them the right to not be sued by Microsoft. I guess the question then is whether Novell’s customers can distribute the software to others. Under GPLv2 I think the answer is yes, because the deal is only a covenant not to sue for use alone, not a license to distribute, but anyone would received it and used it would be liable to be sued by Microsoft for patent infringement. Under GPLv3 the answer would also be yes, since again the language talks about licenses and not covenants. As to whether the covenant is a license is going into legal terminology beyond my understanding. There’s also the question of what a patent holder can sue for, does it include mere distribution (without use) ? Actually, rereading this paragraph it seems I’m somewhat confused on the technicalities.

    Getting back to the point, from my point of view there are two desirable outcomes. Either these sorts of deals are utterly outlawed by GPLv3 (which will make things difficult for Novell in the next 5 years once GNU libc goes GPLv3), or these sorts of deals are allowed so long as they are strictly restricted to a “covenant not to be sued for use” (use of software being one thing the GPL, all versions, itself says it cannot impose restrictions on) while saying nothing about distributing, making it similar to the warranty one may offer for a fee. The latter is what I thought OSRM offered, although having reread their site they don’t actually offer it, despite saying “OSRM plans to offer indemnification
    packages, a form of insurance-like protection against Open Source-related litigation”
    in their press releases. In the same release is the following: “And, similar to the Open Source model itself, OSRM has engaged the open source
    community by funding the Unix Timeline Project. Created to track down all Unix copyrights that could lead to Open Source legal claims, this project is led by Pamela Jones, creator of”.

    So what’s actually getting my goat is the hypocritical behaviour of Pamela Jones and Bruce Perens slamming Novell, despite being beneficiaries of a company designed to provide the same sort of indemnification as the Microsoft Novell deal has. Either OSRM and the deal are ok, or neither is, but you can’t have one without the other.

    Also, the followup comment via email failed as my mail server has reject_unknown_sender_domain on, and (from whence the mail came) doesn’t exist in DNS.

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