Re: GPLv3 comedy unfolding -- "fate worse than death: ... Novell and Microsoft"

[Alexander Terekhov]

A software patent forbids the use of a technique or algorithm, and its 
existence is a threat to all software developers and users. A patent 
holder can use a patent to suppress any program which implements the 
patented technique, even if thousands of other techniques are 
implemented together with it. Both free software and proprietary 
software are threatened with death in this way.

However, patents threaten free software with a fate worse than death: a
patent holder might also try to use the patent to impose restrictions 
on use or distribution of a free program, such as to make users feel 
they must pay for permission to use it. This would effectively make it 
proprietary software, exactly what the GPL is intended to prevent.

Novell and Microsoft have recently attempted a new way of using patents
against our community, which involves a narrow and discriminatory promise
by a patent holder not to sue customers of one particular distributor of 
a GPL-covered program. Such deals threaten our community in several ways,
each of which may be regarded as de facto proprietization of the software.
If users are frightened into paying that one distributor just to be safe 
from lawsuits, in effect they are paying for permission to use the program. 
They effectively deny even these customers the full and safe exercise of 
some of the freedoms granted by the GPL. And they make disfavored free 
software developers and distributors more vulnerable to attacks of patent 
aggression, by dividing them from another part of our community, the 
commercial users that might otherwise come to their defense.

We have added the fourth and fifth paragraphs of section 11 to combat
this threat. This subsection briefly describes the operation of the new
provisions. We follow it with a more detailed separate note on the Mi-
crosoft/Novell patent deal, in which we provide an extensive rationale for
these measures.

Section 11, Fourth Paragraph. As noted, one effect of the discriminatory
patent promise is to divide and isolate those who make free software
from the commercial users to whom the promise is extended. This deprives
the noncommercial developers of the communal defensive measures against
patents made possible by the support of those commercial users. The fourth
paragraph of section 11 operates to restore effective defenses to the 
targets of patent aggression.

A patent holder becomes subject to the fourth paragraph of section 11
when it enters into a transaction or arrangement that involves two acts:
(1) conveying a GPLv3-covered work, and (2) offering to some, but not all,
of the work’s eventual users a patent license for particular activities 
using specific copies of the covered work. This paragraph only operates 
when the two triggering acts are part of a single arrangement, because the 
patent license is part of the arrangement for conveying, which requires 
copyright permission. Under those conditions, the discriminatory patent 
license is “automatically extended to all recipients of the covered work 
and works based on it.”

This provision establishes a defense to infringement allegations brought
by the patent holder against any users of the program who are not covered
by the discriminatory patent license. That is to say, it gives all 
recipients the benefit of the patent promise that the patent holder 
extended only to some.

The effect is to make contributing discriminatory promises of patent 
safety to a GPL distribution essentially like contributing code. In both 
cases, the operation of the GPL extends license permission to everyone 
that receives a copy of the program.

Section 11, Fifth Paragraph. The fourth paragraph of section 11 gives
users a defense against patent aggression brought by the party who made 
the discriminatory patent promise that excluded them. By contrast, the 
fifth paragraph stops free software vendors from contracting with patent 
holders to make discriminatory patent promises. In effect, the fifth 
paragraph extends the principle of section 12 to situations involving 
collusion between a patent holder and a distributor.

Under this provision, a distributor conveying a GPL-covered program
may not make an arrangement to get a discriminatory patent promise from
a third party for its customers, covering copies of the program (or 
products that contain the program), if the arrangement requires the 
distributor to make payment to the third party based on the extent of its 
activity in conveying the program, and if the third party is itself in 
the business of distributing software. Unlike the fourth paragraph, which 
creates a legal defense for targets of patent aggression, the consequence 
for violation of the fifth paragraph is termination of GPL permissions 
for the distributor.

Note on the Microsoft/Novell Deal

The business, technical, and patent cooperation agreement between 
Microsoft and Novell announced in November 2006 has significantly affected 
the development of Draft 3. The fourth and fifth paragraphs of section 11 
embody our response to the sort of threat represented by the 
Microsoft/Novell deal, and are designed to protect users from such deals, 
and prevent or deter the making of such deals.

The details of the agreements entered into between Microsoft and Novell,
though subject to eventual public disclosure through the securities 
regulation system, have not been fully disclosed to this point.20 [20 
Lawyers employed by the Software Freedom Law Center, which is counsel to 
the Free Software Foundation and other relevant free software clients, 
were accorded limited access to the terms of the deal under a 
non-disclosure agreement between SFLC and Novell. The reasons for delay 
in the application of securities regulations requiring publication of the
relevant contracts are unrelated to the deal between Microsoft and 
Novell.] It is a matter of public knowledge, however, that the arrangement 
calls for Novell to pay a portion of the future gross revenue of one of 
its divisions to Microsoft, and that (as one other feature of a complex 
arrangement) Microsoft has promised Novell’s customers not to bring patent 
infringement actions against certain specific copies of Novell’s SUSE 
“Linux”21 [21 This is a GNU/Linux distribution, and is properly called SUSE 
GNU/Linux Enterprise Server.] Enterprise Server product for which Novell 
receives revenue from the user, so long as the user does not make or 
distribute additional copies of SLES.

The basic harm that such an agreement can do is to make the free software 
subject to it effectively proprietary. This result occurs to the extent 
that users feel compelled, by the threat of the patent, to get their 
copies in this way. So far, the Microsoft/Novell deal does not seem to have 
had this result, or at least not very much: users do not seem to be 
choosing Novell for this reason. But we cannot take for granted that such 
threats will always fail to harm the community. We take the threat 
seriously, and we have decided to act to block such threats, and to reduce 
their potential to do harm. Such deals also offer patent holders a crack 
through which to split the community. Offering commercial users the chance 
to buy limited promises of patent safety in effect invites each of them to 
make a separate peace with patent aggressors, and abandon the rest of our 
community to its fate.

Microsoft has been restrained from patent aggression in the past by the
vocal opposition of its own enterprise customers, who now also use free 
software systems to run critical applications. Public statements by 
Microsoft concerning supposed imminent patent infringement actions have 
spurred resistance from users Microsoft cannot afford to alienate. But if 
Microsoft can gain royalties from commercial customers by assuring them 
that their copies of free software have patent licenses through a deal 
between Microsoft and specific GNU/Linux vendors, Microsoft would then be 
able to pressure each user individually, and each distributor individually, 
to treat the software as proprietary. If enough users succumb, it might 
eventually gain a position to terrify noncommercial developers into 
abandoning the software entirely.

Preventing these harms is the goal of the new provisions of section 11.
The fourth paragraph deals with the most acute danger posed by 
discrimination among customers, by ensuring that any party who distributes 
others’ GPL-covered programs, and makes promises of patent safety limited 
to some but not all recipients of copies of those specific programs, 
automatically extends its promises of patent safety to cover all 
recipients of all copies of the covered works. This will negate part of 
the harm of the Microsoft/Novell deal, for GPLv3-covered software.

In addition to the present deal, however, GPLv3 must act to deter similar
future arrangements, and it cannot be assumed that all future arrangements
by Microsoft or other potential patent aggressors will involve procuring
the conveyance of the program by the party that grants the discriminatory
promises of patent safety. Therefore, we need the fifth paragraph as
well, which is aimed at parties that play the Novell role in a different 
range of possible deals.

Drafting this paragraph was difficult because it is necessary to 
distinguish between pernicious agreements and other kinds of agreements 
which do not have an acutely harmful effect, such as patent contributions, 
insurances, customary cross-license promises to customers, promises 
incident to ordinary asset transfers, and standard settlement practices. We 
believe that we have achieved this, but it is hard to be sure, so we are 
considering making this paragraph apply only to agreements signed in the 
future. If we do that, companies would only need to structure future 
agreements in accord with the fifth paragraph, and would not face problems 
from past agreements that cannot be changed now. We are not yet convinced 
that this is necessary, and we plan to ask for more comment on the question. 
This is why the date-based cutoff is included in brackets.

One drawback of this cutoff date is that it would “let Novell off” from
part of the response to its deal with Microsoft. However, this may not be 
a great drawback, because the fourth paragraph will apply to that deal. 
We believe it is sufficient to ensure either the deal’s voluntary 
modification by Microsoft or its reduction to comparative harmlessness. 
Novell expected to gain commercial advantage from its patent deal with 
Microsoft; the effects of the fourth paragraph in undoing the harm of 
that deal will necessarily be visited upon Novell.
------

regards,
alexander.

--
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