Re: Novell-MS Pact: "We will change the law such that ... we will reverse the legal consequences of this deal" says Eben

[Alexander Terekhov]

http://money.cnn.com/blogs/legalpad/index.html

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The license, known as the GNU General Public License (GPL), had already
been in the process of revision. In an interview with me this morning,
Moglen promised that the foundation will now make "further changes" to
the GPL that will make crystal clear that the Novell-Microsoft pact, or
any similar pact, will violate it.

"It will surely violate GPL version 3," said Moglen, referring to the
forthcoming version. Version 3 had been expected to be in place no later
than March 15, 2007, though Moglen said he was uncertain whether the new
circumstances would affect that schedule. "GPL version 3 will be
adjusted so the effect of the current deal is that Microsoft will by
giving away access to the very patents Microsoft is trying to assert."

At 9:13 a.m. (Eastern Time) Legal Pad emailed Novell (NOVL) and
Microsoft (MSFT) seeking comment. Microsoft referred the inquiry to
Novell. At 3:45 p.m. Novell's chief marketing officer, John Dragoon,
sent back a statement. It's printed below this post in its entirety.

Though the Novell-Microsoft deal also included components that called
for technological and marketing cooperation between the companies, the
FSF objects to only one of the legal components of the deal. That is the
provision that would grant patent peace to those users of Linux who sign
service and support agreements with Novell, but not to other users of
Linux. By granting patent peace to Novell's Linux users, the pact was
seen by many in the Linux community as implicitly menacing all other
Linux users, by heightening the threat that Microsoft might sue them.

Moglen offered no opinion on whether the Microsoft-Novell deal violates
the GPL currently in effect (known as version 2), but merely pledged
that version 3 would clearly bar such "discriminatory" deals. Moglen
also heads the Software Freedom Law Center, whose clients include such
free and open-source projects as Samba and Wine.

"I'm instructed by my client," Moglen said, referring to the FSF, "that
version 3 will contain measures that will prevent any such deal from
occurring in the future. We will change the law such that . . . we will
reverse the legal consequences of this deal."

The Microsoft-Novell pact had been welcomed by the chief technology
officers of many Fortune 500 companies, who just want to be able to use
free and proprietary software, to have them interoperate smoothly, and
to not have to worry about incurring patent suits. Nevertheless, the
free and open-source developer community--which produces such
software--has generally received the deal with great suspicion and
trepidation, if not outrage.

Regular readers of this blog may wonder if the deal Moglen is
effectively declaring to be dead on arrival is the same one that I
described just five days ago (in the previous post) as "potentially
paradigm shifting." The answer is: well, yes. But Friday was a more
naive and hopeful era.

NOVELL'S STATEMENT:

Novell remains committed to its historic agreement with Microsoft
regarding Linux and Windows interoperability. This agreement was in
direct response to the hundreds of thousands of customers who use both
Linux and Windows who simply wanted both operating systems to work well
together. Mr Parloff suggests he has discovered similar support from
enterprise clients who "just want to be able to use free and proprietary
software, to have them interoperate smoothly..."

Our second objective remains the growth of Linux and Open Source. By
addressing issues of interoperability, we advantage Linux in the
marketplace and in doing so make it a more compelling alternative to
UNIX and other operating systems (yes, even including Windows). While
Microsoft may believe they are advantaging Windows, we believe in the
power of the open source community. In any case, it's called competition
and the ultimate winner is the customer. The technical and business
collaboration elements of the Novell and Microsoft agreement are the
most compelling and valuable agreements from the customer perspective
and they will serve to promote open source.

We dealt with the current GPL license (GPL version 2) when we worked on
our partnership with Microsoft. We reaffirm that our patent cooperation
agreement is compliant with GPLv2. The fact that Mr. Moglen offered no
opinion on this question is instructive. As to GPLv3, which is still a
work in progress, Novell has supported the Free Software Foundation's
pursuit of transparent discussions that surface and address the needs of
all relevant constituencies -- customers, developers and vendors. For
GPLv3 to be viable and relevant, it will need to address the needs of
these constituencies, and Novell maintains that its partnership with
Microsoft benefits those constituencies. The GPLv3 efforts should not be
turned to a task designed to undo a transaction that will actually
promote the enterprise-wide adoption of Linux and one that will best
address the computing needs of customers.

Novell has entered into a transaction with Microsoft that will address a
real customer issue: getting heterogeneous IT environments to function
better. Novell has been a leader in the open source community; one who
has made important technical contributions and one who has been on the
forefront of providing legal protection (through indemnification for our
customers, our patent pledge, and our co-founding of the Open Invention
Network alongside IBM, Sony, Philips, and Red Hat). Novell has
contributed more than 10 million lines of code to Linux and the open
source community, and we support more than 250 engineers whose full-time
job is to develop open source software.

There are various opinions about the Novell-Microsoft agreement. We
continue to believe that by focusing on the needs of the market and the
long-term growth of Linux, the agreement will generate the results that
Mr. Parloff thought possible last week when he was imagining a more
"hopeful era." Our customers hope so, too.

John Dragoon
Senior Vice President - Chief Marketing Officer
Novell
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regards,
alexander.