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Novell/Microsoft patent deal secrets

Most of the Novell/Microsoft patent deal is now out in the public. With this, the veil has been lifted in part from this controversial patent partnership.

With this unveiling we now know that there is still no proof, other than Microsoft’s flat unsupported statement, that Linux violates any of Microsoft’s patents. We also know that it appears, as Novell CEO Ron Hovsepian has said, that Novell never agreed that Linux violated Microsoft’s patents.

In the agreement, as no less a figure than Richard M. Stallman, the author of the GPL, said not long after the Novell/Microsoft patent deal became public news, “Microsoft has not given Novell a patent license, and thus, section 7 of GPL version 2 does not come into play. Instead, Microsoft offered a patent license that is rather limited to Novell’s customers alone.”

Stallman also said: “It turns out that perhaps it’s a good thing that Microsoft did this now, because we discovered that the text we had written for GPL version 3 would not have blocked this, but it’s not too late and we’re going to make sure that when GPL version 3 really comes out it will block such deals. We were already concerned about possibilities like this, namely, the possibility that a distributor might receive a patent license which did not explicitly impose limits on downstream recipients but simply failed to protect them.”

The vast majority of people who were concerned with this matter agreed with Stallman. They saw the GPLv3 as blocking any future such partnerships between Microsoft, or other proprietary software companies, and open-source software businesses.

The attorneys of the SFLC (Software Freedom Law Center) would come to see the interaction of the GPLv3 and the Novell/Microsoft patent deal in quite a different light.

Richard Fontana, counsel for the SFLC, revealed this new view when he said, “Now that Microsoft has effectively become a distributor of Linux, by distributing some 50,000 or so Novell SLES coupons, it has perhaps unwittingly restricted its ability to sue Linux users over its patents. While this is particularly clear under the forthcoming Version 3 of the GPL, the Microsoft lawyers who helped craft the MS-Novell deal appear to have overlooked the fact that, by procuring the distribution of lots of free software under GPL Version 2, among other licenses, Microsoft has already lost some of its power to assert patents against subsequent distributors and users of that software.”

In short, thanks to the Microsoft/Novell deal, Fontana argued, Microsoft had become subject to the GPLv2. Famous free software lawyer and SFLC Chairman Eben Moglen goes even farther.

In an online seminar, Moglen said that the Microsoft/Novell agreement will run afoul of the GPLv3’s “dancing with wolves provision.” The short version of Moglen’s position is that as soon as a customer gets a copy of SLES (SUSE Linux Enterprise Server) via a Microsoft SLES certificate after the GPLv3 is released, Microsoft will becomes subject to the GPLv3 and all its potential patent restrictions.

The Microsoft/Novell patent agreement reveals that Microsoft saw this threat to its patent portfolio before hand. The relevant language from Novell’s 10K reads:

“[The GPLv3] Discussion Draft 3 includes a term intended to require Microsoft to make the same patent covenants that our customers receive to all recipients of the GPLv3 software included in our products. It also includes a license condition intended to preclude companies from entering into patent arrangements such as our agreement with Microsoft by prohibiting any company that has entered into such an arrangement from distributing GPLv3 code. This license condition does not apply to arrangements entered before March 28, 2007, so as currently proposed it would not apply to our agreement with Microsoft; however, the FSF specifically indicated that this ‘grandfathering’ condition is tentative and may be dropped depending on feedback the FSF receives.”

The agreement continued, “If the final version of GPLv3 contains terms or conditions that interfere with our agreement with Microsoft or our ability to distribute GPLv3 code, 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, we 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.”

Therefore, it would seem, if the GPLv3 is passed with stronger patent language, the easiest way for Microsoft to avoid losing any of its hypothetical legal leverage with its patents would be to stop distributing the SLES certificates. That may not work, though.

Moglen argues: “The coupons have no expiration date, and Microsoft can be sure that some coupons will be turned into Novell in return for software after the effective date of GPL 3. Once that has happened, patent defenses will, under the license, have moved out into the broad community and be available to anybody who Microsoft should ever sue for infringement.”

Microsoft has not yet addressed this issue head on. This may help explain, though, why Microsoft recently released the results of a Microsoft-sponsored study that purported to show that open source developers oppose the use of the GPLv3.

In addition, Bill Hilf, Microsoft’s general manager of platform strategy and Sam Ramji , Microsoft’s head of its open-source software lab, recently blogged that “Microsoft was created by developers, for developers and is only successful through developers and customers. Developers who write Open Source software are participating in a worldwide community of practice and a spirit of collaboration. These are noble characteristics and Microsoft both applauds and supports this work.

“We continue to champion projects like JBoss, Zend (PHP), and SugarCRM, as well as Firefox, openwsman, Bandit and thousands of others. We are building relationships and a track record here and we ask that you judge us on these actions.”

While Hilf and Ramji said, “Our strategy regarding intellectual property and open source has not changed — and it is not frivolous litigation or fear,” this also can be seen as Microsoft backing away from what many saw as the Windows-powerhouse threatening Linux and open-source software with patent lawsuits.

When the Novell/Microsoft deal was first revealed, it was widely seen as an attack on Linux and open-source. As we learn more about the deal’s details, though, it appears to be more of a double-edged sword than anyone could have foreseen.

A version of this story first appeared in Linux-Watch.

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